How to protect yourself from credit card fraud

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November 13, 2021

This article is written by Mayank Verma, pursuing Diploma in US Technology Law and Paralegal Studies: Structuring, Contracts, Compliance, Disputes and Policy Advocacy from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Introduction

Credit card frauds are the biggest threat to any business establishment today. However, to fight this fraud effectively, it is essential to recognize the mechanism of performing fraud. Fraudsters use different modus operandi to commit fraud. Credit Card fraud can also be defined as;

“When a credit card is used by some individual which originally belongs to some other individual and the owner is not aware of the fact that his card is being used by someone else. Further, the owner of the card has no relation with the one using the card fraudulently and has no intention of either communicating to the cardholder or making any repayments for any purchases made by him”.

Frauds related to credit cards are committed in the following ways:

Using the unauthorized account or personal information to commit an act of criminal deception.
Account being used unlawfully for personal gain.
Misrepresenting account information for obtaining goods and services.

Merchants are at a larger risk from credit card frauds than cardholders. If someone shops on the internet, the merchant (web site) is not protected from any of the safeguards like physical verification i.e signature checks, photo identification, etc. It is not possible to conduct physical checks to ascertain who is operating at the other end of the transaction. This makes the internet a very soft target for fraud perpetrators. Internet fraud rate is 12 to 15 times higher than frauds committed in the physical world. However, recent technological developments are allowing us to keep a check on these frauds.

Purpose of the article

Different credit card frauds,
How fraudsters take advantage of different loopholes,
Impact of frauds on merchants, issuers, and cardholders,
Fraud prevention and management.

Fraud techniques

Credit card frauds are executed in many ways. As technology evolves, the methods and systems used by fraudsters to carry out fraudulent activities also evolve. Frauds can be further classified into:

Card related frauds,
Merchant related frauds,
Internet frauds.

Card related frauds

Application fraud

When a false application is filed to acquire a credit card. It can be executed in three different ways:

Obtaining personal information of someone else and opening an account in his or her name;
When an individual gives a false financial status of himself to acquire the credit card i.e. financial fraud;
The card is stolen before it reaches the owner’s place i.e. Not Received Items (NRIs).

Lost/stolen card

When a card gets lost or stolen by the original owner if he or she loses it to an individual or it gets stolen for criminal purposes. This type of fraud is the easiest to commit without any technological investment and the most difficult to tackle.

Account takeover

The personal information of an individual is stolen by the fraudster and this information is used by him to take control of the legitimate account by providing his account number and other details. Then the fraudster contacts the credit card issuer pretending to be the original owner and asks the mail to be sent to a new email address. He also intimates that his card has been lost and asks for a replacement to be sent.

Fake and counterfeit cards

The production of fake credit cards poses a large threat together with the lost/stolen cards. Fraudsters are regularly dwelling to find more advanced ways to create fake credit cards. A few of the techniques used are:

Erasing the Magnetic Strip – It is initiated by erasing the magnetic stripe of the card acquired illegally. The details then are tampered with so as to match the details of a valid card that is stolen. When the fraudster starts to use the card, the cashier will jab the card over the terminal several times, before understanding that the metal strip does not function. The cashier will then continue to manually input the card details into the terminal. This method of fraud has a very high risk because the treasurer will have to look at the card closely to recite the numbers.
Creating a Fake Card – Creating a fake card from the threshold level by advanced machines. It requires a high skill set and a lot of effort. Fraudsters need to bypass the modern holograms being injected into credit cards and it is difficult to forge those.
Altering Card Details- Heat and pressure are applied to the card to re-emboss the information already printed on it or computer software is used to encode the magnetic stripe on the card.
Skimming – Most frauds include skimming, in this process, the original data of the card is copied to another. Pocket skimming devices are there in the market to get hold of the customer’s card details when the card is swiped on it. Skimming takes place without the knowledge of the cardholder and is very difficult to trace.

Merchant related frauds

These frauds are committed by the merchant owners or their employees. Some frauds are:

Merchant Collusion– When merchant owners build a conspiracy to commit fraud using the customer’s account or his/her information. Merchants pass on information about cardholders to fraudsters.
Triangulation– Fraudulent sites which appear to be legitimate auction or sales sites are deployed those offer goods at heavy discounts. The customer while placing orders provides personal information like name, address, and card details. Fraudsters once they receive these details, order goods from a legit website using stolen card details. Then the fraudster purchases goods using the credit details of the customer.

Internet-related frauds

The internet is a very easy target for fraudsters to commit fraud. With the expansion of the internet, more fraudsters are engaging with it. Some techniques used by them are:

Site Cloning– In this process, fraudsters clone an entire site or some pages from which an order is placed by the customer. Customers view web pages of those websites which are identical to those of the real website. The consumer doesn’t suspect anything, while the fraudsters acquire all the information they need to commit fraud.
False Merchant Sites– These sites offer the customer some very cheap service and request their credit card details in return to access the content of their website. These websites are deployed to collect as much credit card information as possible.
Credit Card Generators- These generators are computer programs that generate valid credit card details and their expiry dates. This software works by using the mathematical Luhn Algorithm that card issuers use to generate other valid card number combinations.

Impact of fraud on cardholders

The cardholder is the least impacted party as the fraud in these transactions is such that the consumer liability is limited for these transactions by the legislation. Even banks have their own standard rules that limit the customer’s liability to a great extent. Cardholder protection policy compensates for most losses of the cardholder. The cardholder has to just report any suspicious happenings to the bank which will lead to further investigation with the merchant and the acquirer.

Impact of fraud on merchants

Merchants are the most affected party and they have to accept full liability for losses due to fraud. Whenever a legitimate cardholder disputes a credit card charge, the card-issuing bank will send a chargeback to the merchant (through the acquirer), retreating the credit for the transaction. In case, the merchant does not have any physical evidence (e.g. delivery signature) existing to challenge the cardholder’s dispute, it is impossible to inverse the chargeback. Therefore, the merchant will have to incur the cost of the fraudulent transaction. This cost comprises several components, which could add up to a significant amount. The cost of a fraudulent transaction consists of:

Cost of goods sold,
Shipping cost,
Card association fees,
Merchant bank fees,
Administrative cost,
Loss of reputation.

Impact of fraud on banks (issuer/acquirer)

Based on rules by Mastercard and Visa, the issuer/acquirer may bear the cost of the fraud. Like in the case of chargebacks issued to the merchant, there are some manpower and administrative costs that the bank has to incur.

Fraud prevention technologies

Although fraudsters are using sophisticated methods to trap people and gain access to their personal credit card information, new technologies are being invented to help merchants detect and prevent these fraudulent transactions. These technologies enable merchants and participating banks to carry out highly sophisticated and automatic screenings of transactions and blacklist suspicious transactions.

Some of the fraud prevention techniques are mentioned below.

Manual review

Reviewing every transaction manually for signs of any fraudulent activity and involves high human intervention. It is time-consuming, expensive, and prone to errors.

Address verification system

Applicable in the card-not-present scenario. Address Verification System matches the first digits of the address and the Zip Code info that is provided for delivering the purchase to the corresponding data on record with the card issuers. This technique is not useful in the case of international transactions.

Card verification system

It consists of a 3 or 4 digit numeric code that is printed on the credit card but it is not imprinted on the card and is not obtainable through the magnetic stripe. Merchant can ask the cardholder to present the numeric code in case of card-not-present transactions and to submit it with the authorization. It ensures that the person submitting the code is in possession of the actual card and since the code cannot be skimmed or copied through the magnetic stripe, it prevents fraud.

Negative and positive lists

Negative lists consist of a database that is used to segregate high-risk transactions based on specific data fields. An example could be a list of card numbers having chargeback in the past. A merchant can create and maintain a list of these high-risk transactions to review and decide when to restrict orders initiated from these countries.

Positive files on the other side are used to recognize trusted customers and by their email address or card number, and therefore can bypass certain checks. It is used as a tool to prevent unnecessary delays invalid orders.

Payer authentication

It brings a new level of technology to B2C internet commerce. This program is based on a personal identification number linked with the card, similar to ATM cards, and to secure this direct authentication channel between the consumer and the issuing bank. The PIN is provided by the bank when the cardholder enrols the card with the program and it is used to authenticate online transactions.

Fraudulent merchants

Both Visa and Mastercard publish a list of those merchants involved in fraudulent transactions in the past. These lists provide some useful information to acquirers at the time of recruiting merchants preventing potential fraudulent transactions.

Conclusion

As credit card business transactions increase, so do these frauds. Global networking opens up new opportunities for fraudsters as it does for new businesses. While providing numerous opportunities and advantages and opening up new conduits for business transactions, the internet too now has a high probability of fraudulent credit card transactions creeping in.

The good news is that technology is also evolving for preventing these frauds with the passage of time. The reduction of computing costs is helping to introduce complex systems, which can segregate fraudulent transactions in a fraction of a second.

It is thus equally important to identify these right segments of transactions which should be reviewed, as every transaction does not carry the same amount of risk connected with it. Finding and recognizing the fraud and utilising the prevention technologies enumerated in this article can assist banks in combating fraud more efficiently.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

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Overview of famous cyber crime cases that target people instead of money

By

Abanti Bose

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November 12, 2021

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This article has been written by Mayuri Shukla, pursuing the Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. The article has been edited by Zigishu Singh (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Introduction

Man has become increasingly dependent on the internet for all of his needs as technology improves. The internet has given man instant access to everything from a single location. Social networking, online shopping, data storage, gaming, online education, and online jobs are just a few of the things that may be done using the internet. The internet is used in almost every facet of daily life. Post the advent of the Covid-19 pandemic, the work from home culture emerged, entrapping man further into the web of tech-based tools to fulfil work, education, entertainment and communication needs. When the Internet was first conceived, the founders of the Internet had no idea that it would grow into an all-encompassing revolution that might be used for criminal purposes and would demand control. There are a lot of disturbing things going on online these days. Because of the anonymous nature of the Internet, anyone with knowledge of the internet can participate in a range of illicit acts with impunity, and these individuals have been abusing this feature of the Internet to further illegal activities in cyberspace. This is the reason cyber laws are required in India. The concept of cybercrime rose in popularity as the internet and its attendant benefits expanded in popularity. Hence, there are various sorts of cybercrime.

Cybercrime is defined as any illicit activity that involves the use of a computer as a tool, a target, or both. Cybercrime is a rapidly evolving field of crime that is growing at an exponential rate. There are various Cyberlaw issues involved at every point in time, from registering your domain name, setting up your website, marketing your website, sending and receiving emails, to the moment you perform electronic commerce transactions on the aforementioned site. Criminals have realised the convenience of committing crimes in the online world thus the enactment of proper laws and infrastructure to regulate cybercrime has become a serious concern. The primary victims of the violation are women and children. Basically, cybercrime is on the rise because it is seen as the simplest method of committing a crime, and people with a lot of computer knowledge but no job or financial resources resort to this source and begin abusing the internet. Cybercriminals can easily acquire access to data from this location and exploit it to withdraw money, blackmail, or commit other crimes.

In layman’s terms, “Cyber Crime” refers to offences or crimes committed via electronic communications or information technologies. These are generally illicit activities that involve a computer and a network. Because there is no longer a need for the criminal to be physically present when committing a crime, the volume of cybercrime activities is expanding as a result of the internet’s development. One unique feature of cybercrime is that the victim and the perpetrator may never meet face to face. To limit the possibilities of detection and prosecution, cybercriminals frequently operate from nations where there is little to no cybercrime legislation. Cybercriminals are on the rise because they don’t see much of a threat and believe they are safe because they are so well-versed in the networking infrastructure. They are also the ones who create fake accounts and then use them to perform crimes. Cyberlaw is significant because it encompasses nearly all elements of transactions and activities on and with the Internet. At first glance, Cyberlaw may appear to be a highly technical field with little relevance to ordinary Cyberspace operations. In reality, nothing could be further from the truth. Every action and reaction in Cyberspace has certain legal and Cyber legal implications, whether we recognize them or not.

Types of cybercrime across the globe

DDoS Attacks

These are used to take down a network and make an online service inaccessible by flooding the site with traffic from a number of sources. Botnets are large networks of compromised devices formed by installing malware on users’ PCs. Once the network is down, the hacker enters the system.

Botnets

Botnets are networks made up of infected machines that are managed from afar by hackers. These botnets are then used by remote hackers to transmit spam or attack other computers. Botnets may also be used to execute destructive functions and serve as malware.

Identity Theft

When a criminal acquires access to a user’s personal information, they can use it to steal money, access secret information, or commit tax or health insurance fraud. They can also use your name to create a phone/internet account, organise criminal action, and claim government benefits in your name. They might do so by breaking into users’ passwords, stealing personal information from social media, or sending out phishing emails.

Cyber stalking

This type of cybercrime entails online harassment, in which the person is bombarded with messages and emails. Cyber stalkers typically utilise social media, websites, and search engines to frighten and terrify users. The cyber stalker usually knows their target and makes them feel threatened or worried about their safety.

Social engineering

Criminals use social engineering to make direct contact with you, generally via phone or email. They frequently masquerade as a customer service person in order to earn your trust and obtain the information they want. This is usually a password, your employer’s name, or your bank account number. Cybercriminals will gather as much information about you as possible on the internet before attempting to add you as a buddy on social media platforms. They can sell your information or open accounts in your name after they acquire access to an account.

Potentially Unwanted Programs

PUPS, or Potentially Unwanted Programs, are a sort of malware that is less dangerous than other cyberattacks. They remove essential applications from your computer, such as search engines and pre-installed programmes. Because they may include malware or adware, it’s a good idea to install antivirus software to protect yourself against dangerous downloads.

Phishing

Hackers send malicious email attachments or URLs to users in order to obtain access to their accounts or computers in this form of attack. Many of these emails are not detected as spam because cybercriminals are getting more organized. Users are duped into clicking on links in emails that imply they need to change their password or update their payment information, allowing hackers to access their accounts.

Prohibited/illegal content

Criminals engage in this cybercrime by exchanging and disseminating unsuitable material that can be unpleasant and offensive. Sexual activities between adults, recordings with excessive violence, and movies depicting criminal action are examples of offensive content. Materials inciting terrorism and child exploitation are examples of illegal content. This sort of information may be found on both the public internet and the dark web, which is an anonymous network.

Online scams

These are frequently in the form of advertisements or spam emails that contain promises of prizes or money offers that are too good to be true. Scams on the internet include alluring offers that are “too good to be true,” and when clicked on, can result in malware interfering with and compromising information.

Exploit kits

To acquire control of a user’s computer, exploit kits require a vulnerability (a flaw in software code). They are ready-to-use tools that thieves may purchase online and employ against anyone who has access to a computer. Exploit kits, like conventional software, are updated on a regular basis and are available on dark web hacker forums.

SQL injections

SQL(Structured Query Language) injection is a hacking method that allows hackers to take advantage of security flaws in the software that runs a website. It may be used to attack any SQL database that isn’t adequately secured or isn’t protected at all. This procedure entails putting SQL code – most typically usernames and passwords – into a web form entry field to grant the hacker more access to the site’s backend or to a specific user’s account. In most cases, when you enter login information into sign-in forms, it is transformed to a SQL command. This command compares the data you’ve entered to the database’s relevant table. If your input data matches the data in the table, you’re permitted access; if it doesn’t, you’ll notice an error similar to what you’d see if you typed in the wrong password. An SQL injection is a command that, when placed into a web form, attempts to update the database’s content to represent a successful login. It may also be used to obtain information from unsecured websites, such as credit card numbers or passwords.

Cross-site scripting

XSS (previously CSS, but changed to avoid confusion with cascading style sheets) is a simple approach to get around a security mechanism. Cross-site scripting is a difficult-to-detect flaw in a website that makes it vulnerable to attack. A hacker infects a web page with a malicious client-side script or programme in a conventional XSS attack. When you visit this website, the script is immediately downloaded and performed in your browser. In order to fool you and collect private information, attackers typically inject HTML, JavaScript, VBScript, ActiveX, or Flash into a susceptible programme.

Salami Slicing Attack

The most popular use of the salami-slicing technique is money laundering, but it is not limited to that. The salami approach may also be used to collect little bits of data over time to create a comprehensive picture of an organisation. This act of disseminating information might be used against a person or a company. Data can be gathered from websites, adverts, recycle bin documents, and other sources, gradually accumulating a database of factual intelligence about the target.

Cases that involve cyber crime

UIDAI Aadhaar software hacked

A billion Indian Aadhaar card details were leaked in India and this is one of the most massive data breaches that happened in 2018. UIDAI released the official notification about this data breach and mentioned that around 210 Indian Government websites were hacked. This data breach included Aadhar, PAN, bank account IFSC codes, and other personal information of the users and anonymous sellers were selling Aadhaar information for Rs. 500 over Whatsapp. Also, one could get an Aadhaar card printout for just Rs.300.

Mobikwik data breach

The recent data breach at the payment from Mobikwik in India is alarming. According to reports, the data breach affected 3.5 million customers, revealing know-your-customer records including addresses, phone numbers, Aadhaar cards, and PAN cards, among other things. Until recently, the corporation has claimed that no such data breach occurred. Only until the regulator, the Reserve Bank of India (RBI), instructed Mobikwik to immediately perform a forensic audit by a CERT-IN empanelled auditor and submit the findings did the business begin engaging with the appropriate authorities.

ATM system hacked

Around mid-2018 a cyber-attack was launched against Canara bank ATM servers in India. Several bank accounts were emptied of about 20 lakh rupees. According to reports, cybercriminals had access to ATM data for more than 300 individuals, resulting in a total of 50 victims. Skimming devices were used by hackers to collect information from debit cardholders. The value of transactions conducted using stolen information ranged from Rs. 10,000 to Rs. 40,000.

Baazee.com case

In December 2004, the CEO of Baazee.com was arrested after a CD containing inappropriate information was sold on the website. The CD was also available in Delhi’s marketplaces. Later, the CEO was released on bail bond. This raised the question of how we should distinguish between Internet Service Providers and Content Providers. The accused bears the burden of proving that he was the Service Provider rather than the Content Provider. It also creates a lot of questions about how police should handle cyber-crime cases, and it necessitates a lot of education.

List of Blackbaud breach victims tops 120

The National Trust in the United Kingdom has joined a growing list of education and charitable organisations whose alumni or contributors’ data has been compromised as a result of a two-month-old ransomware attack at US cloud software provider Blackbaud. The Trust, which manages hundreds of vital and historical sites throughout the UK, including natural landscapes and landmarks, parks, gardens, and stately homes, told BBC that the data of its volunteers and fundraisers had been compromised, but the data on its 5.6 million members was safe. The organisation is investigating and alerting anyone who could be affected. It has also reported the incident to the Information Commissioner’s Office, which is currently dealing with a significant number of reports, including Blackbaud’s, in accordance with UK data protection laws.

Phishing scam targets Lloyds Bank customers

A phishing scam is presently infecting the inboxes of Lloyds Bank customers via email and text messages. Griffin Law, a law firm, has warned individuals about the fraud after learning of around 100 people who have received the texts. Customers’ bank accounts have been hacked, according to the email, which seems to be official Lloyds Bank correspondence. “Your Account Banking has been blocked, owing to recent actions on your account, we have temporarily suspended your account until you authenticate your account,” it says.

Cyber gangsters hit UK medical firm poised for work on coronavirus with Maze ransomware attack

The computer systems of a medical research business on standby to conduct trials of a potential future vaccine for the Covid-19 coronavirus were assaulted by cybercriminals. After Hammersmith Medicines Research refused to pay a ransom, the Maze ransomware organisation hacked the company’s computer systems, exposing the personal information of thousands of former patients. Early clinical trials of medications and vaccines are conducted by the business, which conducted studies to create the Ebola vaccine and treatments to treat Alzheimer’s illness.

Carnival cruise lines hit by ransomware, customer data stolen

Carnival Corporation has revealed that it has been the target of an unidentified ransomware assault that has accessed and encrypted a piece of one of its brands’ IT systems, putting the personal information of both customers and employees at risk. Carnival, like the rest of the travel sector, has been hit by the Covid-19 epidemic – it also owns Princess Cruises, which owns the ill-fated Diamond Princess, which was at the centre of the original outbreak – it has filed a report with the US Securities and Exchange Commission. The company said cyber thieves who gained access to its systems also grabbed a number of its data files, implying that it may be vulnerable to a double extortion attempt similar to those carried out by the Maze and ReVIL/Sodinokibi gangs.

Cosmetics company Avon offline after cyber attack

After an alleged ransomware attack on its IT systems, parts of the UK website of Brazilian-owned cosmetics and beauty company Avon remained offline more than a week after the attack. The assault is thought to have harmed the back-end systems used by the company’s well-known sales reps in nations other than the United Kingdom, including Poland and Romania, which are currently operational. People have been unable to place orders with the firm as a result of this. On June 9, 2020, Avon notified the US Securities and Exchange Commission of the breach, stating that the company had had a “cyber event” in its IT infrastructure that had disrupted systems and impacted operations.

Conclusion

As people’s reliance on technology grows, cyber laws in India and around the world must be updated and refined on a regular basis. The pandemic has also driven a large portion of the workforce into a remote working mode, highlighting the importance of app security. Legislators must go above and beyond to stay ahead of the impostors in order to stop them in their tracks. Cybercrime can be managed, but it will require the cooperation of legislators, Internet or network providers, intermediaries such as banks and shopping sites, and, most crucially, consumers. Online safety and resilience can be achieved by the judicious actions of various stakeholders, assuring their adherence to the law of the cyberland. In a nutshell, cybercrime refers to any crime done via electronic methods, such as net extortion, cyberbullying, child pornography, and internet fraud. The internet is a significant breeding ground for pornography, which has frequently been subjected to obscenity-based regulation. However, what is considered obscene in India may not be so in other countries. Pornography is rampant online due to the fact that each country’s legal position on the subject is varied. Pornography, on the other hand, falls under the category of obscenity and is criminal under Indian law, according to the Indian Constitution. Child pornography is a severe crime that can result in the toughest penalties allowed by law. Pedophiles prey on minors in chat rooms. Because the photographs, once posted, spread like wildfire and may never be taken down completely, the internet enables for long-term exploitation of such children. Internet crimes against minors are a serious concern that is being addressed by authorities, but there is no simple solution to this problem.

To summarize, while a crime-free society is a utopian concept and only exists in dreams, there should be a continued effort to keep crimes to a minimum. . Electronic crime is expected to increase, especially in a society that is becoming increasingly reliant on technology, and lawmakers will have to go the extra mile to keep fraudsters at bay. Technology has always been a double-edged sword that may be used for both good and evil purposes. They fall under the category of cybercrime and become punishable offences when they fall into the wrong hands with a criminal intent to profit from or misuse software. As a result, rulers and legislators should make constant efforts to ensure that technology develops in a healthy manner and is employed for legal and ethical economic growth rather than criminal activity thus minimizing the increasing rate of cyber-crimes that aim to target people instead of money.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

How to use the National Cyber Crime Reporting Portal effectively

By

Rachit Garg

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November 12, 2021

0

This article has been written by Hema Modi, pursuing a Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. It has been edited by Zigishu Singh (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Table of Contents

Introduction

The National Cyber Crime Reporting Portal is a platform through which the citizens of India can report a cyber crime committed against them online. This portal was launched on 30^th August, 2019 by the Ministry of Home Affairs. The Portal was launched along with the inauguration of the Indian Cyber Crime Coordination Centre (I4C) in New Delhi. The entire idea and scheme of launching and curbing the cyber crimes in India was divided into seven different parts. They are:

National Cybercrime Threat Analytics Unit
National Cyber Crime Reporting Portal
National Cyber Crime Training Centre
Cyber Crime Ecosystem Management Unit
National Cyber Crime Research and Innovation Centre
National Cyber Crime Forensic Laboratory Ecosystem
Platform for Joint Cyber Crime Investigation Team

Out of these 7 components, the National Cyber Crime Reporting Portal was launched so that the affected citizens could directly, and quickly, report cybercrimes online through the portal. After the reporting, the concerned law enforcement agencies would look into the matter and take prompt actions as per law.

This initiative was launched due to the advancement of technology and sophisticated techniques, due to which the real perpetrators are colourised after they commit crime, and catching hold of them becomes next to impossible. In such cases, grave injustice is done to the victim and he/she has nothing to do but to suffer.

This portal tries to bridge that gap by having a dedicated team of experts and investigators look into the matter urgently and render justice to the affected person/persons.

National Cyber Crime Reporting Portal (NCCRP) is an efficient platform where the government has taken initiative to report cyber crime complaints online. A special focus has been given to the crimes committed against women and children.

How can this portal be used effectively?

Once the victim or any interested party wants to register complaint on the portal, he/she needs to visit, www.cybercrime.gov.in/

Firstly, there is a different tab for reporting women/child-related crime and other cyber-related crimes. One can choose his/her choice in accordance with the crime which has taken place.

Then, the victim is asked to provide the basic details of the crime and his/her personal information. Thereafter, the citizens of India can login by filling out the following details as shown in picture:

After registering with the portal, the image provided below opens up.

Here, the victim can provide the details of the incident.

The portal is so effective that it provides the different categories of complaint which includes Online and social media related crime, Hacking, Online Cyber Trafficking, Online Gambling, Ransomware, Cryptocurrency crime, Cyber Terrorism, and any other related crime.

On the other hand, in cases of crime against women and children, the victim has the privilege to mask her name and report it anonymously. This function helps the female victim in a very efficient manner by protecting her identity.

Once all the details are provided along with any evidence or proof of the suspect or the crime committed by him, the complaint is registered and the victim receives the tracking I.D.of his/her reported crime.

The reporter can track the status and know the progress of his report.

The portal works effectively to provide the status and remarks, if any, regarding the process of investigation and catching hold of the actual culprit.

Furthermore, apart from providing an easy platform for immediate action towards cyber crime, the portal also tries to educate the masses by providing basic knowledge and information about different cyber crimes on its platform. For instance, one major crime against women is Online Sextortion which is defined on the portal as “Online Sextortion occurs when someone threatens to distribute private and sensitive material using an electronic medium if he/ she doesn’t provide images of a sexual nature, sexual favours, or money.”

Similarly, the platform provides for the explanation of 24 different crimes like vishing, sexting, smishing, sim swap scam, phishing, spamming, ransomware, website defacement, pharming, cybersquatting and many others. This makes NCCCRP unique and efficient in its own way.

The NCCR Portal is efficacious enough in providing basic online safety tips and safe practices which may help in making the online experience of the users productive. It also contributes towards making citizens aware of the increasing crime rates in relation to cyberspace. According to the portal, safety tips for parents, teens, young adults and organisations, have been provided which, if followed, would safeguard the users from becoming victims of cyber crime.

Some of the online safety tips to be followed are:

One should be mindful of their appearance on video chat & video calls.
One should not use Smartphone for taking sensitive personal photographs and videos
All organisations should have clear rules for the use of electronic devices and if any employee is found possessing obscene or indecent content, proper investigation and action should be taken against them.
One should browse shopping or banking websites or apps only on a device that belongs to him/ her or on a trusted network. Avoid using a friend’s phone, public computer, cyber cafe or free Wi-Fi for sensitive browsing as data can be stolen or copied.
One should Refrain from sharing your personal information like Phone number, e-mail address, photographs with unknown persons

How effective is it in solving the problem?

According to Ashok Kumar, Director of the Ministry of Home Affairs, about 4 lakh complaints have been registered in less than a year on this platform. This Platform helps them to gain a perspective and wide overview of what kind of crimes are taking place. Pursuant to this, an effective and strong legislative framework can be framed so that the crimes can be reduced in the coming years.

The Ministry of Home Affairs operationalized the National Cyber Crime Reporting Portal on 30^th August 2019 to provide a centralized mechanism to the citizens for online reporting of all types of cyber crime incidents, with a special focus on cyber crimes against women and children. Incidents reported on this portal, their conversion into FIRs and subsequent action thereon are handled by the State/UT law enforcement agency concerned as per the provisions of the law. As per the data maintained, since its inception 3,17,439 cyber crime incidents and 5,771 FIRs have been registered upto 28.02.2021 in the country which inter-alia includes, 21,562 cyber crime incidents and 87 FIRs registered in Karnataka, and 50,806 cyber crime incidents and 534 FIRs registered in Maharashtra.

Improvisations in the Portal

Recently, The Central Government operationalised the Financial Cyber Fraud Reporting and Management System wherein the national helpline number “155260” was activated for reporting financial loss due to cyber fraud. It is a dedicated helpline number working in 26 out of 29 states in India wherein the citizens can immediately report such crime. The investigation team of the Indian Cyber Crime Coordination Centre along with the active support of all the major banks including Reserve Bank of India takes control of the case.

Reportedly, this dedicated system of helpline number has helped to save approximately Rs. 1.85 crore of defrauded money.

How does this platform operate?

Once the victim informs the concerned person about the cyber financial fraud and provides the basic information, the System is updated with the same and a ticket is generated.
The ticket generated is floated to the concerned bank and other online payment platforms to check where the defrauded money is present.
Once it is identified, the money is kept on hold so that the fraudsters cannot withdraw the money and the victim is saved from such cyber-frauds.

In this way, if any amount of money is withdrawn from the victim’s e-wallet, bank accounts or any other source, then it can be stopped and further the real culprit can be traced out to curb future frauds as such.

Following this methodology, Delhi and Rajasthan have saved Rs. 58 lakh and Rs. 53 lakh reportedly.

Conclusion

However, despite so many advantageous features which can be a boon for India in order to reduce the rising rate of cyber crimes in India, it is in the hands of the investigative agencies who are responsible for taking immediate actions and working for the same. If there is delay in carrying out the investigation process, the matter goes out of hand and the real culprit is not questioned or sentenced for his crime.

Therefore, the need of the hour is to be vigilant and to act vigilant, so that the growth of cyber crime reports is reduced and the citizens become more responsible in using cyberspace.

References

National Cyber Crime Reporting Portal, https://cybercrime.gov.in/
Govt. Portal records over 4 lakh cybercrime complaints in less than a year, https://www.outlookindia.com/website/story/india-news-govt-records-over-4-lakh-cybercrime-complaints-in-less-than-a-year/388339
The National Cyber Crime Reporting Portal, https://timesofindia.indiatimes.com/topic/the-National-Cyber-Crime-Reporting-Portal
National Cyber Crime Reporting Portal launched for citizens to report cyber crimes online, https://www.news18.com/news/tech/national-cyber-crime-reporting-portal-launched-for-citizens-to-report-cyber-crimes-online-2454259.html
MHA tells states to register more FIRs for cybercrime, https://www.thehindu.com/news/national/mha-tells-states-to-register-more-firs-for-cyber-crime/article32997209.ece
New Facility to tackle cyber crimes, https://www.drishtiias.com/daily-updates/daily-news-analysis/new-facility-to-tackle-cyber-crimes

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Procedure for drafting a new article in the Indian Constitution

By

Rachit Garg

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November 12, 2021

0

This article is written by Daksh Ghai, from Symbiosis Law School, Noida. The article provides a brief overview of the various procedures taken and considerations made by the legislature while drafting an article.

Introduction

The Constitution is a set of basic principles that govern a country’s politics and reflect the exercise of political power. It establishes the framework and functions of the government’s primary organs, as well as the modes of interaction between the state and its citizens. On January 26, 1950, the Indian Constitution, which is often regarded as the world’s longest constitution came into effect.

The goal of the law is to reduce public suffering to the greatest extent possible, to prevent political and social injustices, and to ensure that everyone is treated fairly. At the national level, the parliament makes these laws, while at the state level the state legislature makes them. Schedule 7 of the Indian Constitution divides power between the central government and state governments. The Union list includes subjects that can only be formulated, changed, and governed by the central government; the state list includes subjects that can only be governed and formulated by the state government; and the concurrent list includes subjects on which both the state and the central government may formulate laws.

Procedure for making laws

Pre drafting stages

At first, the necessity for a new law or a change to existing legislation is identified; this is done by the government ministries, the citizen groups and the pressure groups who can promote public awareness and educate the public about the law’s importance.

Initiation of Legislative proposals

The Cabinet or any minister in charge of the relevant ministry initiates legislative initiatives on behalf of the government. Proposals concerning important government policies are being developed in order to carry out the electoral promises. The formation of legislative policy is the first step in the process of preparing a Bill. Since law is a formal and legal manifestation of a legislative policy, the policy sought to be implemented by it must first be defined and settled from administrative, economic, and political perspectives before the Bill can be produced.

Pre legislative consultation policy

To enable efficient pre-legislative examination of a draft law in consultation with stakeholders, the government has issued a Pre-legislative Consultation Policy. It requires publishing and making the draft available in the public domain. The pre-legislative consultation policy is a method for citizens to interact with the government by providing feedback and opinions on proposed policies and legislation. Prior to 2014, this process was not uniformly recognised.

However, in 2014, the Central government introduced the Pre legislative consultation policy. Under this, it has been mandated that every Ministry must place draft bills in the public domain for comments/feedback for 30 days. The document put out for public consultation should also provide reasons for the need for the law, financial considerations and explanation of legal terms in simple language. The policy, on the other hand, was introduced by the central government in 2014. Under the policy, every Ministry is required to place draft bills in the public domain for 30 days for public comment and feedback. The document put out for public consultation should also provide reasons for the need for the law, financial considerations and explanation of legal terms in simple language.

Examination of the proposal

As soon as a legislative proposal is formulated, the relevant ministry determines its political, societal, economical, and sociological implications. When other government departments or state governments are involved, their suggestions are taken into account and wherever possible, experts’ opinions are taken into consideration, after discussion with the ministry of law or the Attorney General, the legal and constitutional aspects of the matter are examined.

Drafting of the memorandum

After the proposal has been properly studied from all angles and individuals affected by it have been consulted, a memorandum is drafted, which is then submitted to the cabinet for approval after being cleared by the ministry of law.

Clearance from the cabinet

The cabinet limits its discussion to the broad policy issues raised by the proposal before making a decision. If the proposal is noteworthy, the cabinet may request one of its standing or ad hoc committees examine it. The cabinet may also ask for the draft of the actual Bill for a more comprehensive inspection.

Drafting stages

Cabinet approval

The legal and constitutional aspects of the problem are investigated in consultation with the Ministry of Law or the attorney general. After the idea has been thoroughly studied from all perspectives, a memorandum is written and submitted to the cabinet for approval after the ministry of law has given its consent. Before making a decision, the cabinet limited its discussion to the proposal’s major policy problems. If the proposal is substantial, the Cabinet may request that one of its standing committees or an ad hoc committee investigate it further.

Preparation of statement of objects and reason

After a Bill has been passed by various experts connected with the matter, it is forwarded to the administrative ministry for the production of a statement of objects and reasons, which briefly outlines the proposed legislation’s objective. The statement should explain Bill’s contents, including its contents and purposes, and assist in comprehending Bill’s necessity and extent.

The house preference

Money and certain financial Bills are not allowed to be introduced in the Rajya Sabha under 117(1) of the Constitution. Bills may originate in any House of Parliament, subject to these limitations. Planning and management of legislative and other official business in both Houses are one of the functions assigned to the Ministry of Parliamentary Affairs under the Government of India’s allocation of Business Rules, and that Ministry selects the House in which a non-Money Bill will be introduced.

The Bill’s printing

Through an office Memorandum signed by draftsmen, the Ministry of Law transmits a proof copy of the Bill to the Secretariat. The Secretariat receives two proofs of the English and Hindi versions of the Bill validated by the Legislative Council from the Ministry of Law. From that point forward, the Bill is under the hands of the House, and it is the Secretariat’s obligation to ensure that fair copies of the Bill are printed and distributed to members, as well as to perform all other necessary actions.

Parliamentary procedure

The Bill is introduced in Parliament when the Cabinet authorises it. The Parliament is the central legislative (or law-making) body in the Indian political system. Before becoming an Act, every Bill passes through three Readings from both Houses.

First reading

The legislation process begins with the introduction of a Bill in either house of Parliament; however, a Bill must first be granted leave to be introduced, it is necessary to ask for leave to introduce the bill. If the house grants leave, the Bill is introduced. This constitutes the first reading of the Bill. If a motion for leave to introduce a Bill is challenged, the chairman or speaker may allow the individual to make a brief explaining statement. After that, it’s up to the house to vote without any discussion.

Second reading

There are 2 stages in the second reading

The ‘first stage’ entails a general discussion of Bill’s concepts and provisions on any of the motions below: that the Bill be considered; that the Bill be referred to a Rajya Sabha Select Committee; that the Bill be referred to a joint committee of the houses with the concurrence of the Lok Sabha; that it be circulated for the purpose of eliciting public opinion; that the Bill be referred to a joint committee of the houses with the concurrence of the Lok Sabha; that the Bill be referred to a joint committee of the houses with the concurrence of the Lok Sabha; that the Bill be circulated for the purpose of eliciting opinion thereon. At this point, the houses have the option of referring the Bill to a select committee of the house or a joint committee of both houses.
“Second stage” refers to Bill’s clause-by-clause examination as introduced or as reported by the Select/Joint Committee. Amendments given by members to various clauses are moved at this stage.

Third reading

The third reading refers to the debate on the motion that the Bill (or the Bill as amended) be passed or returned (to the Lok Sabha in the event of a Money Bill), during which the arguments for and against the Bill are presented. At this stage, the discussion is limited to arguments in favour of or against the measure, with no deeper discussion of its details than is required. At this point, only formal, verbal, or consequential amendments are permitted.

Post parliamentary procedure

The President’s approval

The President has certain functions in respect of passing a Bill. A bill passed by both the Houses of Parliament requires his assent in order to become an Act. He may give his assent to a bill or can withhold assent when a bill, after getting approved in both the Houses, is placed before the President. But, if Parliament, acting on the President’s refusal to assent to a bill, passes it again with or without amendment, for the second time and presents it to the President for his approval, the President shall not withhold his assent there under Article 111. In other words, it becomes obligatory upon him to give his assent.

In certain cases, prior sanction of the President is required for initiating any legislation. For instance, a bill for the formation of a new State or altering the boundaries of the existing State or States is to be placed before Parliament with prior approval of the President. Money bill is another example where obtaining such approval of the President is a constitutional necessity.

Public participation in the legislative process

Role of the citizen

Citizens can also play a key part in the formulation and change of current acts, due to increased transparency in the policymaking process and equitable access for all participants in participating in the process.

For instance Mazdoor Kisan Shakti Sangathan (MKSS), a grassroots organization based in Rajasthan. While working in Rajasthan, MKSS encountered widespread corruption in the PDS system and it surmised that the primary reason for such a large scale corruption in relief works and supply of essential commodities was the implementation of such government programs which was being done in secrecy and there was a misuse of funds and other corrupt practices. Official records were never shared with citizens as a result of which they were unable to question officials and demand accountability. Thus started the movement by MKSS to demand access to official records and information related to local development works, a citizen group was created which received the backing of many social activists and the media which later came to be known as ‘Right to Information’.

Participation with the standing committees

When a Bill has been introduced it is normally submitted to the relevant standing committee, which requests input from different people and experts. This gives civic society and the general public another opportunity to participate in legislation. All standing committee discussions happen behind closed doors, with no access to the public or the media, the general public can approach the relevant committee and request permission to testify in front of it and the government is not obligated to follow the standing committee’s suggestions.

The Bill for the Maintenance and Welfare of Parents and Senior Citizens was introduced in 2007. The 2007 Maintenance and Welfare of Parents and Senior Adults Bill seeks to make it a legal requirement for children and heirs to provide maintenance to senior citizens. Several parties submitted written submissions and gave oral testimony to the standing committees as they discussed the Bill between May and July 2007. The All India Senior Citizens Confederation, the Senior Citizens Service Forum, and Age Care India, among others, were among these organisations. In August 2007, the Standing Committee submitted its report. In December of 2007, the Bill was eventually passed and signed into law.

Procedure for Constitution Amendment in India

In comparison to the world’s top Constitutions, India’s Constitution allows for a unique amendment process. It can be defined as flexible and rigid in parts. The Indian Constitution allows for three types of amendments.

Simple majority amendments:

Certain articles of the Constitution can be altered with a simple majority (i.e., more than 50%) of the total members present and voting. This category can be used to change, for example, the admission of a new state under article 2, Schedule IV, and article 11, among other things.

Amendment by a special majority:

Some provisions of the Constitution can be modified by a special majority (66%) of not less than two-thirds of the members of the House present and voting.

Amendment by special majority and ratification by State Assemblies:

Article 368 stipulates that if the amendment intends to change “certain specific elements of the Constitution,” it must be approved by a special majority (66 percent) in Parliament, followed by ratification by at least half of the state legislatures. The Bill is then delivered to the President for his signature after this process is completed.

Conclusion

Laws are norms that all members of a community must follow. Laws safeguard our general safety and defend our rights as citizens against abuse by others, organisations, and the government itself. We have laws in place to ensure our general safety. These can be found on a local, state, or national level. In so far as the constituent power to make formal amendments is concerned, it is article 368 of the Constitution of India which empowers Parliament to amend the Constitution by way of addition, variation or repeal of any provision according to the procedure laid down therein, which is different from the procedure for ordinary legislation. The amending procedure provisions are a bit sketchy. As a result, they allow a lot of room for the judiciary to intervene. Despite these flaws, the procedure has shown to be simple and straightforward, and it has been successful in fulfilling society’s changing requirements and situations. The procedure is neither too flexible to allow the ruling parties to adjust it according to their whims nor too strict to adapt to new needs.

References

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Investigating various approaches and ways to detect cybercrime

By

Abanti Bose

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November 12, 2021

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This article has been written by Yatharth Chauhan, pursuing the Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Table of Contents

Introduction

With the advancement of technology, man has become heavily reliant on the Internet to fulfil all of his requirements. The internet has allowed man to quickly access anything from a single location. The internet is used in practically every aspect of life. As the internet and its associated advantages have gained currency, so has the notion of cybercrime. Millions of users’ personal details have been taken as a result of cybercrime in recent years, posing a serious hazard to web users. Cybercriminals are very adept and difficult to locate on the public and dark web as well. There is no specific definition of “cybercrime” in any legislation or guideline. The term “cyber” refers to computers, information technology, the internet, and the digital world. Cybercrime is a crime that requires the application of a computer, mobile or any other gadget. Computer crime is another term for cybercrime. The computer could be used either as an object to attack other devices such as Hacking, SQL Injection, Distributed Denial-of-service attack, etc. or as a tool to further real-world based crime such as infringement of Intellectual Property Rights, Child pornography, financial frauds, etc. Cybercrime can be perpetrated by individuals or organisations with modest technical understanding, as well as highly organised global criminal networks which include competent coders.

Cybercrime investigation is the tracking down of the perpetrators of the digital crime and acquiring further information about their true objectives by investigating, assessing, and retrieving important forensic digital evidence from the attacked network, which might be the Internet or a local area network. Computer science specialists that are conversant with not just software, file systems, and operating systems, but also networks and hardware, are required for cybercrime investigations. They must be competent enough to figure out how these components interact in order to acquire a complete view of what happened, why it occurred, when it occurred, who committed it, and how people can safeguard themselves from future cyber assaults.

Categories of cybercrime

Individual, property, and government are the three major categories in which cybercrime may be classified.

Property– This is analogous to an actual scenario in which a criminal gains unauthorised access to a person’s bank or credit card information. The hacker takes the user’s bank account information in order to obtain access to cash, make online transactions, or launch phishing schemes to trick individuals into handing over their confidential information. They might even employ malicious programs to get access to a website containing sensitive data. There are several offences that have an impact on a person’s property such as cybersquatting, cyber vandalism, disseminating viruses, infringement of Intellectual Property Rights, etc.
Government- Cyber terrorism is a type of crime committed against the government. It covers cyber warfare, cyber terrorism, pirated software, etc.
Individual- This kind of crime has the most immediate impact on individuals. It basically includes cyber-stalking, cracking, defamation, e-mail and SMS spoofing, child pornography, hacking, etc.

Methods for investigating cybercrime

The majority of digital crimes are amenable to several standard investigating approaches. Some of these are as follows:

Assessing the background- When dealing with the cybercrime complaint, creating and establishing the crime’s backdrop using known facts can assist investigators to establish a basic framework for determining what they’re up against and how much data they have.
Getting as much information as possible- Obtaining as much information as possible about the event is one of the most crucial tasks on the part of the cybersecurity investigator. Was it a computer-assisted assault or a human-targeted assault? What is the extent and magnitude of the problem? What kind of cybercrime was perpetrated? What proof is there, and where can it be discovered?

Ethical hackers use a variety of methods and technologies to gather vital information and information about locations as well as data gathering software to advance their agenda. The following are some of the most popular strategies for acquiring information:

Social Engineering: It means taking the advantage of human weaknesses so as to obtain permission to the confidential information and network. The inherent absence of a cybersecurity environment contributes to social engineering assaults being one of the deadly forms of network vulnerabilities. Major social Engineering includes phishing, whaling, vishing, Baiting, spear-phishing, pretexting, etc. Hackers commonly use phishing emails and other identical strategies to target businesses, therefore, staff must be reinforced. Employees can access the system and networks of the company therefore they play a significant role in guaranteeing the company’s strength in the face of attacks. When it comes to cybersecurity, the company’s security management is heavily influenced by working culture. Developing a cybersecurity environment in the organization takes more than setting boundaries with no rationale and reminding employees to change their passwords regularly. Employees are not intentionally endangering the company. They indeed require direction and instruction in order to prevent various forms of cybercrime. That is why businesses must endeavour to improve their data security. This entails addressing and raising the awareness of the employees about the cyberattacks and their repercussions and developing and implementing strong cybersecurity rules that are simple to integrate into their everyday work routines.
Social Networking– when approaching specific people, Twitter, LinkedIn, and other social media sites are valuable platforms to get information for constructing a profile.
Names of the Domain– These are basically enrolled by Institutions, governments, public and commercial entities, as well as individuals. Domain names can be used to find confidential information, connected domains, services, and innovations.
Search Engines- Web Crawlers may be used to gather data on any subject. For cybersecurity experts, Google Dorking, often known as Google hacking, is a great tool. Google is a search engine used by the common person to locate information, photos, movies, etc. In the field of information security, however, Google is a powerful hacking device. Although Google cannot actively hack websites, it does have web-crawling skills. Google Dorking is a technique of leveraging Google’s inherent search engine abilities to locate insecure web applications. Cache, Allintext, Allintitle, Allinurl, Inurl, Intitle, etc. are well-known dorks.

Locating the author– To locate the perpetrators behind the cyber assault, private and public organisations collaborate with ISPs and networking firms to obtain vital log data about their linkages, as well as historical services and websites accessed during the period they were linked.
Digital forensic- It entails examining the primary data, hard discs, file systems, caching systems, RAM memory, and other sources. The investigator, when a forensic examination commences, will search for fingerprints in the file system, network, emails, internet history, and other areas.

Forensic tools for cybercrime investigation

Based on the methods one is employing and the stage they are at, cybercrime investigation tools might offer a wide range of features. Some of the major forensic tools are as follows:

SIFT Workstation– SIFT is a suite of forensic tools designed to assist emergency teams and forensic investigators in analysing digital forensic material across many platforms. FAT 12/16/32, NTFS, HFS+, EXT2/3/4, UFS1/2v, vmdk, swap, RAM dta, and RAW data are among the file systems it handles.
Sleuth Kit– The Sleuth Kit is a set of forensic tools for Unix and Windows that aids investigators in examining disk images and retrieving files from them.
X-ways forensics– For Windows-oriented operating systems, it is one of the most comprehensive forensic tools available. It is extremely convenient, allowing one to operate it on a memory card and transfer it effortlessly across computers.
CAINE– It is a whole Linux distro for digital forensic investigation, not only a cybercrime investigation programme. It can retrieve information from a multitude of operating systems, including Linux, Unix, and Windows.
ProDiscover Forensic– It is equipped to undertake any forensic investigation. It assists researchers in swiftly locating files, gathering, processing, preserving, and scrutinizing data, as well as generating the statement of evidence.
Oxygen Forensic Detective– It is one of the greatest multi-platform forensic tools for cybersecurity experts and forensic specialists to access all important information in one location. One can swiftly extract data from a variety of smartphones, drones, and computer operating systems using Oxygen Forensic Detective.
Bulk Extractor-It is a popular tool for obtaining vital data from digital evidence. It is not only used to retrieve the information, but also to analyse and gather it. One of its most useful features is that it works flawlessly with practically every OS platform, like Linux, Unix, Mac, and Windows.
Exif– It can read, write, and alter metadata from a wide range of media assets, such as images and movies. It permits you to save the findings in text or simple Html form.
Surface Browser– It is the ideal tool for discovering a firm’s whole online infrastructure and extracting useful intelligence information from DNS records, domains, information, and much more.

Conclusion

Cybercriminals have gained control over the network in the present technological world. The majority of users are totally unconcerned about the possibility of being attacked, and they seldom change their passwords. As a result, a large number of individuals are vulnerable to cybercrime, thus it is critical to educate oneself. In today’s environment, one must be alert and vigilant since one can never realize when one can become a victim.

Cybercrime investigation is a difficult science to master. To enter the cybercrime scene efficiently and profitably, one would need the correct information paired with a variety of approaches and instruments. After they have gathered all of this information, they would be able to correctly examine the information, research the underlying reason, and discover the perpetrators of various sorts of cybercrime. Therefore, we must make certain that our systems are as safe as possible.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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GI and artisanal industry : an overview

By

Rachit Garg

-

November 12, 2021

0

Geographical-Indications_Featured-Image-702x336 — Image source: https://factly.in/how-many-geographical-indications-are-registered-in-india/

This article is written by Kavana Rao from Symbiosis Law School, Noida. This article gives an overview of the Geographical Index and the role it plays in the artisanal industry.

Table of Contents

Introduction

Kashmiri Saffron, Manipuri Black Rice, Palani Panchamirtham in Palani Town, Tirur Betel leaf from Kerala; something that is common among all these is that all these items have recently been given a GI tag. Section 2(3) of the GI Act,1999 defines Geographical Indication as an indication that identifies the agricultural, natural or manufactured goods that originates from and is significant to a particular region of the country and the quality, reputation or characteristic of the good is attributable to that region. For example, like the Coorg Cardamom, Kanchipuram Silk Saree and many more.

The primary purpose of a GI is to differentiate the goods on the basis of their geographical origin. A geographical indication right authorises the ones who have the right to use the indication to prevent its use by a third party whose product does not meet the applicable standards.

Artisanal industry : an overview

The artisanal industry is one of the key drivers for economic growth, increasing employment among the rural groups, and preserving cultural heritage. The industry employs nearly 7 million people directly and indirectly, which comprises a large number of women and people from the weaker sections of society. Therefore, the handicrafts that they make, the textiles they weave and the pottery wheel that they spin has become vital for their livelihood. The artisanal industry is the second-largest rural income provider after the agricultural industry with the artisanal and handicraft industry being a ₹24,300-crore industry and contributing nearly ₹10,000 crores annually in export earnings, according to a report in 2018. These artisans are spread across different parts of the country.

The rural artisans comprise art and handicraft makers, weavers, potters, metalware makers, sculptors and many more. They are the backbone of the rural industry in India and provide employment to the rural population. Mostly these rural artisans adopt their forefather’s vocations and play an important role in carrying forward and upholding their rich cultural life. These rural artisans have inherited their skills from their ancestors, it can be described as a creation symbolising the profound desire and reverence to the art and tradition that the families have been following for generations together.

Within India, artisans can be found everywhere, spanning from the northernmost part to the southernmost parts of India. For instance, we have artisans making wooden toys in the town of Channapatna called Channapatna toys, and in different cities of Rajasthan, we find weavers pursuing different types of block printing on the fabric, the state of Uttar Pradesh is known for its famous Banarasi sarees. Thus, artisans are not limited to a particular region and every region has its own special handicraft and artefact.

Why was GI introduced in India

The GI Act was formulated in 1999 but came into effect in 2003. One of the main reasons for the formulation of the Act was the serious threat that fake handicrafts and handlooms cost businesses and livelihoods of several craftsmen. Mass factory-produced fake Kashmiri carpets, Pashmina shawls and Ganesha idols with different looking eyes were flocking the markets. This not only proved harmful for the producers who could not compete with the low prices of the mass-produced goods, but also the consumers were often fooled by passing off mass-produced goods for handicrafts. The final blow for the introduction of the geographical indication was the Basmati Rice controversy with the United States of America, where the USA was granted a patent for Basmati rice despite the rice crop being grown in India and the South Asian subcontinent for ages. As a consequence of this controversy, India enacted the Geographical Indications of Goods (Registration and Protection) Act, 1999.

What is the role of GI in the artisanal industry

The most important role of GI in the artisanal industry is that it prevents unauthorised use of the product by the commercial operators and prevents passing off of mass produced products as traditional and authentic handicrafts at lower prices which brutally affects the artisans. It not only promotes financial gain to the producers by exporting the products but also provides legal protection in other WTO nations. India is a diverse and rich amalgamation of cultures and traditions, has a wide and prosperous storehouse of goods which can be adduced to their geographical origin or place of production or manufacture. Their place of origin must be recognised and the artisans producing it with the same tedious methods to maintain its originality must be given their due recognition. This also aids in rural development and reducing economic disparities, with the remote regions taking part in the production of the goods registered under the GI registry.

GI also protects the goods from being generic. If the goods become generic with mass production, then the originality and authenticity is lost. The artisans who are mostly from impoverished backgrounds and families who have dedicated all their life towards the art and handicrafts and have been doing so for generations are left unemployed. GI not only protects the artisans but also the consumers.It assures the consumers the right product at the right price directly from the weaver or artisan.

The GI plays a role in protecting the artisans from GI infringement by offering them civil or criminal remedies. These remedies can be sought only if the goods have been registered under the Geographical Indications of Goods (Registration and Protection) Act, 1999.

Infringement of geographical indication

Section 22 of the Geographical Indication of Goods (Registration and Protection) Act, 1999 states the laws relating to infringement of geographical indication and this Section has to be read with Section 2 of Article 22 of TRIPS Agreement which states that, in respect of geographical indication, members should provide the legal protection to interested parties to prevent infringement of their rights.

Section 67 of the Geographical Indication of Goods Act states the relief provided by Indian courts for violation of geographical indication may be broadly divided into two categories:

Civil remedies

Injunction

The injunction may either comprise an interim or permanent injunction granted for the disclosure of records, the protection of infringing items, documentation or other facts relating to the subject matter of the suit. An injunction is granted to prevent the defendant from disposing of his assets which may largely affect the plaintiff and will not enable him to recover damages, costs or other pecuniary remedies that can be granted to the plaintiff.

Damages or accounts of profits

If the defendant is successful in proving that he/ she or they were ignorant when they started using the geographical sign in the suit and had no reason to believe that the plaintiff’s sign was on the registry, the court shall not award relief by way of compensation or accounts of profits to the plaintiff. It is also important to note that the defendant must stop after learning about the existence and the nature of the right of the plaintiff in the GI.

Delivery-up of the infringing labels

The goods containing infringing labels and indications can be made to be delivered up for destruction or forfeiture of goods that bear false representation of an existing GI.

Criminal remedies

Judicial remedies are more effective than civil remedies since the former can be easily disposed of. Chapter VIII of the Act deals with such crimes and punishments.

Section 38 to 44 of the Act provides punitive responsibility for violation of various laws relating to the following geographical indications with:

Falsifying and falsely applying geographical indications to goods.
Selling goods to which false geographical indications are applied.

Punishment would be imprisonment of six months to three years and a fine not less than Rs. 50,000 but which may extend to Rs. 2,00,000. In case of a second and subsequent offence then the imprisonment would not be of not less than one year which may extend to three years and a fine not less than Rs. 1,00,000 but which may extend to Rs. 2,00,000.

Impact of GI on artisans

A number of art and handicrafts go unrecognised and gradually lose their relevance in the fast moving world. GI ensures that the spirit of such an item is captured and recognised for its place of origin and uniqueness to the region. It also ensures that the goods are protected from forgeries, abuse, and misappropriation and also provides them legal protection. Previously, the authentic banarasi sarees had to face tough competition with the fake ones which became popular in the markets. This was a severe blow to the artisans and the weavers, producing original and authentic sarees, putting in long hours of labour and skills. The fake ones were sold for lesser prices and thus made it difficult for the original banarasi sarees to compete with them. By helping, producers differentiate their products by providing them with the GI status, increases the producer’s income, prevents misappropriation and retains the traditional knowledge and techniques and augments rural development.

Ever since GI has been granted to many handicrafts and textiles like Phulkari embroidery, Mysore silk, Mysore paintings, Tanjore art, Kashmiri pashminas, Channapatna toys, Muga silk, Kanjeevaram silks etc, these goods have not only become popular within India but also has a massive demand beyond the borders. The artisans and the country earn revenue through the export of these goods and also when the foreigners purchase these goods during their visits to India. This not only improved the foreign exchange for the country but also helped the destitute artisans arise from their misery and aided them with a better standard of living. Through these positive impacts of GI on the artisanal industry, it keeps them motivated to continue producing these artefacts and handicrafts to keep up the vibrant and rich traditions of the region.

What are the amendments that can be brought in the existing GI regime

It has been about 18 years since the GI was first implemented in India. However, despite all these years, there is an absence of a post-GI mechanism. The most essential activity after registration is the exercise of brand building. The authorities must take active steps in promoting the goods. This will attract new and more customers, thus benefiting the producers and uplifting their economic condition and aid them with a better quality of life. This not only helps the producers but also the economy of the country by improving the GDP, employment rate and tourism.

In India, unlike Europe and SouthEast Asia, there is no common logo for the GI products. Having a common logo will make the consumers aware of the uniqueness of the product and thus help in promoting the GI goods. Since the costs involved in brand building and promoting are enormous, the state must take responsibility as a facilitator, step in to help the producers with creating awareness about the GI goods, funds and strengthening the networks and linkages to assist them in selling their goods.

The existing GI regime must also come up with amicable and logical solutions when there is a conflict of interest with ambiguity in the regional demarcation. In recent years, we have seen this occur often with the conflict for the GI tag for the Rasgulla between Odisha and West Bengal.

Conclusion

To sum up, the handicrafts and artifacts significant to a particular region must be given GI tags to protect the originality of the product and protect the marginal class of artisans and secure their livelihood. GI, important to differentiate the handicrafts and artifacts according to their geographical origins, is essential in trade and benefits the country by contributing to the GDP and tourism.

References

https://www.indiacode.nic.in/handle/123456789/1981?view_type=browse&sam_handle=123456789/1362
https://www.wipo.int/geo_indications/en/
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3137936
https://www.business-standard.com/article/news-cm/indian-textile-handicrafts-industry-is-the-lar
gest-employment-generator-after-agri-ajay-tamta-117110900180_1.html
https://www.mondaq.com/india/trademark/655394/geographical-indications-law-in-india-everything-you-must-know
https://www.business-standard.com/article/news-cm/indian-textile-handicrafts-industry-is-the-largest-employment-generator-after-agri-ajay-tamta-117110900180_1.html
https://www.thehindubusinessline.com/on-campus/GI-can-protect-handicrafts-from-abuse/article20561046.ece
Importance of Geographical Indication for Conservation of Traditional Products- Rajiv Kangabam, Assam Agricultural University
https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm
https://ipindia.gov.in/writereaddata/images/pdf/geographical-indications-registration.pdf
Geographical indications in India: Issues and challenges- An Overview, Soumya Vinayan
https://heinonline.org/HOL/Page?collection=usjournals&handle=hein.journals/jwip20&id=122&men_tab=srchresults
https://blog.ipleaders.in/reliefs-provided-for-violation-of-geographical-indication-in-india/

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Overview of capital market and its regulation in India : a critical analysis

By

Diva Rai

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November 12, 2021

0

This article is written by Aditya Anand, student at Symbiosis Law School, Noida. In this article, the author has analysed the regulatory framework of the capital market along with the recommendations.

Table of Contents

Introduction

The capital market is the backbone of every country as it can affect the financial position of the country and regulate the economy. The heart of economic growth lies in the capital market which helps in providing the allocation of funds and mobilization of resources. The major understanding and regulation of the capital market have been an important requirement for the industrial and commercial development of the country. The capital markets cater to the need for a long-term fund that is required for the development of the industrial and commercial sectors.

Capital market in India : a brief overview

The capital market is the place that acts as the platform between the suppliers and the buyers. The savings and investments are channelized between the persons who have capital and the person who needs capital. In simpler terms, the market where buyers and sellers engage in trading of financial securities like bonds, stocks, etc. However, the market is much wider than securities. The participants during such transactions can be an individual as well as an institution.

It includes all types of lending and borrowing. The capital market is generally for the raising of long-term funds. The markets deal mainly with debts and equity securities. There are different types of buyers such as businessmen, companies, government or it can be general people. The major regulatory body is the RBI(Reserve bank of India) assisted by the Ministry of Finance and the SEBI(Security Exchange Board of India).

Background

The capital markets of India have a golden history of approximately 200 years or more than 2 centuries. It dates back to the year 1875 when India was under the direct control of the British Government and the Queen of England, the first time the Bombay Stock Exchange was set up and led to the introduction of capital markets in India among the local people. There was hardly any existence and role of the capital market as agriculture was the primary sector of the economy.

The capital market was mostly dominated by government securities and there were a few individual investors. It started flourishing in the early nineties with the introduction of liberalization, globalization, and privatization and Sensex touched more than 4,000 points from hardly a thousand.

Functions of capital market

Many such functions depict the need for the capital market as they have primary functions such as mobilizing resources of investments, helps in the facilitation of buying and selling of securities, and formulation of effective and efficient price discovery. To settle the transactions as per the due date or within the given time frame. The market provides an effective source of investment as well as channels the funds of private and the government. The capital market has many such institutions which can be classified as holding capital and supply them as securities. For example:

1. Commercial banks such as SBI, Citi Bank, etc.

2. Insurance companies such as LIC, HDFC, Bajaj Finserv, etc.

3. Specialised financial institutions such as IFCI, IDBI, UTI, etc.

4. Provident Fund Societies and other such institutions. There are also individual investors in the market who supply their funds in the capital market. The market is based on lenders, ones who supply funds and the borrowers, ones who demand funds.

Classification of market

The capital market can be classified as primary market and secondary market. The primary market is also known as the Stock Market. This is also known as the new issue market as the investors can buy securities directly from the company that issues. The securities are also known as primary offerings or Initial Public Offerings (IPO) or they can also be raised through the right issue. The company sells its stocks or shares to the general public and investors for generating the fund. It deals with the securities that were not in existence previously and the fresh securities offered to the public to invest for the first time.

The secondary market is for the buying and selling of securities that are already existing and issued by the companies. They are also known as old capital markets. When the securities are first initially offered to the public or get listed in the stock exchanges then it is dealt exclusively in the stock exchange and further, the stock exchange is regulated by the Securities Exchange Board of India. The stocks, shares, and bonds are bought and sold by the general public.

The market can also be classified on the type of securities as the stock market and the bond market. The stock market is also known as the share market or equity market. It is a place where the shares are bought and sold or the economic transactions that have a certain monetary value. The price of shares is highly dynamic as it can change from the fluctuations of demand and supply or the status of the company. The stock market has all the publicly listed companies that can be owned by the private, government, or joint ventures.

The bond market is also known as the debt securities market in which the investors purchase the securities in terms of bonds. The credit market can have various types of issue markets such as the government issue market, the corporate debt issue market, etc.

The regulatory framework and legislation : a discussion

The regulation of capital markets has been very important for development and growth as they provide a stable, steady, and secure platform for both the suppliers and the buyers. If not then there can be massive loss or gain in finance which would be unfair for the general public. Various organizations regulate the market to keep the economy stable. The regulatory structure has been framed under the four pillars that are the Ministry of Finance, Reserve Bank of India, Security and Exchange Board of India, and the National Stock Exchange.

Ministry of Finance(MoF)- The ministry depicts that the Government of India plays a very important role and their economic policies and manifestos help in market regulation and framework. They formulate rules and analyze them for the efficient and effective growth of the market. The Department of Economic Affair which manages the market works under certain sets of laws that are the Depositories Act, 1996, Securities Contract (Regulation) Act, 1956, and Securities and Exchange Board of India Act, 1992. There are many other laws such as the Companies Act, 2013, etc.
Reserve Bank of India- The body that was established in 1934 frames the policies, formulates the bodies and regulates the rules as per the current situation. RBI has active participation in the stock market and also sets the various parameters that are used in the transactions of debt, equity, and other types of securities. They are the bank regulators also as they have access to many bank accounts as they have large funds to control the capital market since banks have the most generated capital on hold. They also set various parameters for regulation such as repo rate, reverse repo rate, etc. They are the intermediary body between the market and the government. They have other various functions in capital markets such as the implementation of various monetary policies, managing the foreign exchange system, settlement, and payments systems.
Security Exchange Board of India (SEBI)- This body can also be considered as the apex body of capital market regulators. SEBI is a principal regulatory body that is also a statutory body established under the SEBI Act,1992. SEBI was earlier established as the non statutory body in 1988. They not only protect the interest of investors in securities but also promote the market. It supervises, controls, and manages several institutional brokers, investors, companies, and all other associated persons related to the market. The body’s primary function is to prohibit malpractice or unfair trade practices such as insider trading or manipulating funds. The stock exchanges work under the direct control of this body as they adopt the flexible and adaptable approach for regulating the market. They perform many other such regulatory functions such as training of intermediaries, auditing of stock exchanges, regulating and registering the mutual funds.

Recently, the review and merger of SEBI(Issue and Listing of Debt Securities) Regulations, 2008 and SEBI(non-convertible Redeemable preference shares) Regulations 2013 into a single regulation- SEBI(Issue and Listing of Non-Convertible Securities) Regulations, 2021.

Acts governing the capital markets

The Depositories Act,1996- The Act regulates the depositories in Securities. The primary objective of this Act is to ensure free transferability of securities with speed, accuracy and security. The Act eases the ownership of transferability of ownership from one person to another in a convenient way. It has made the securities freely transferable in case of Public limited companies along with the securities.
Securities Contract (Regulation) Act, 1956- The regulatory Act deals in all types of issues related to Stock trading. The Act aims at smooth functioning of the stock exchanges. It prevents any kind of defective transactions. It especially deals in listing of stock exchanges and contracts in securities.
Security and Exchange Board of India Act,1992- This Act provides the statutory powers to the SEBI organisation. The governing body regulates the market in a multifarious manner by protecting the interest of the shareholders, preventing any kind of malpractices in the market and promoting the development of the Securities Market. The Act provides wide powers and scope to the SEBI in order to effectively and efficiently run the capital market.

Loopholes and recommendations

As the Indian economy is one of the fastest-growing economies of the world, many such challenges can hinder the growth as certain regulations have loopholes and there are several cases of embezzling funds, defrauding, and illegal channelizing of funds. The associates of the markets use it for unfair trade practices. There is no doubt that in the past few decades the country’s policymakers have promoted the capitalist theory of economy and eventually led to the rapid development of the capital market. Capitalism promotes the concentration of wealth by the few and they invest more and increase the profit up to a maximum extent.

Individual investors can also break the stability of the market by increasing the lending or borrowing capacity. Several such cases have depicted and identified the need for a more powerful regulating body. Some of the cases which have showcased the loopholes are Harshad S. Mehta vs Central Bureau Of Investigation on 1 October 1992, Harshad S. Mehta vs Central Bureau Of Investigation on 21 September 1998. The case of Harshad Mehta indicates the loopholes in the system that how the funds were channelized illegally and used to manipulate the stock market. He understood the gap in the money market. There was a similar story of Ketan Parekh scam 2001 in which he took a loan and channelized funds in the case Ketan Parekh vs Securities and Exchange Board of India on 14 July 2006.

There is also a provision to appeal in the special court named as Securities appellate tribunal and the example case is Ashwin K. Doshi, Pankaj G. Joshi, and others vs Securities and Exchange Board Of India on 25 October 2002. These cases and points depict that there is a problem of financial scams from the capital market which has caused massive loss and also reduced the confidence of investors and created distrust among the people. Such losses compel the system to reform the policies. Another major loophole is insider trading and the manipulation of price as if some investors take the unpublished information and use it for personal benefit. Such illegal use negatively impacts the functioning of markets.

The regional stock exchanges development is greatly affected due to the major and premium stock exchanges such as NSE( National Stock Exchange) and BSE (Bombay Stock Exchange) as investors prefer to invest in securities listed in major stock exchanges. There is also a lack of vigilance over the investors as the people can channelize the illegal funds in stock markets.

The market is generally held by a few investors that make the market biased as it diminishes the opportunity for new investors. There should be a ceiling over the holding of stocks to promote fairness and to provide the opportunity for new investors. Most of the financial scams that take place are due to the private dealings with the banks as they have a pool of funds so these should be strictly prohibited and a systematic way of regulating the funds in banks should be formulated.

Conclusion

The Indian capital market has undergone many changes after the challenges and the irreparable loss faced over years. There have been massive and revolutionary changes over years, and some significant changes that have reduced the financial scam cases. There has been a reduction of malpractices of trade over the years. The capital market has made tremendous progress in terms of institution building. They have transformed and developed the lives of investors and market intermediaries. The market has been friendlier by boosting performance and eliminating the challenges.

References

1.https://economictimes.indiatimes.com/definition/capital-market

2.http://www.legalservicesindia.com/article/2283/Working-of-Capital-Market-In-India.html

3.https://www.icsi.edu/media/webmodules/publications/CapitalMarketandSecuritesLaw.pdf

4.https://www.mondaq.com/india/economic-analysis/949428/capital-market-persevere

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Aerial hijacking and International Law : a critical study

By

Rachit Garg

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November 12, 2021

0

Best-Schools-for-International-Law — Image Source- https://bit.ly/31t6KO8

This article is written by Anurag Singh from ILS Law College, Pune. This is a comprehensive article that critically analyses aerial hijacking and international law related to the same.

Table of Contents

Introduction

One of the greatest inventions in the history of mankind has to be the invention of the aeroplane. This is because, before this invention, it took a lot of time to travel from one place to another. However, after this invention, the time of travel has significantly reduced. Therefore, its use over the period of time has increased exponentially as it has reduced a major inconvenience which is the travel time, moreover, it is the most comfortable form of transportation. Interestingly, everything about civil aviation is not happy-go-lucky. Repeated incidents of aerial hijacking have tarnished the image of this convenient form of transportation. In this article, we are going to discuss in detail this vast topic of aerial hijacking.

Aerial Hijacking: a brief study

According to Alona E. Evans, an American scholar “aircraft hijacking is a contemporary addition to the roster of international and national crimes and the necessity for its control at the international and national level is only beginning to be recognized by the States.”

Aircraft hijacking is the unlawful seizure of an aircraft by an individual or a group. Moreover, it has also been explained in Article 1 of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970 that “any person who onboard an aircraft in flight: unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or is an accomplice of a person who performs or attempts to perform any such act commits an offense”.

Whenever any aircraft is hijacked it is expected that the people hijacking the aircraft want something in return. There can be several motives fuelling these hijackers or there can be only one. In very few cases, they take the passengers as hostages and ask for a monetary ransom. This is because unlike car hijacking and sea piracy, theft or robbery is the least of their concern. However, in most cases, aerial hijacking is done to prove a point to the government concerned or demand a release of high-profile prisoners of the concerned hijacking group. This is the sole reason why it is considered a heinous crime in international law and is termed as a terrorist act all around the globe.

In some cases, the pilot has to fly according to the will of the hijackers or in some cases, the hijackers themselves fly the plane and use the plane as a weapon and target a particular location (notably in 9/11 attacks). Some countries like India have shown an inclination towards negotiating with the hijackers. However, countries like the United States have a very strict policy to avoid negotiating. In most cases, the country negotiating agrees on some of the terms, or not all, to secure the lives of the passengers. For example in IC 814, where the release of all the terrorists in Indian jails was demanded, however, the release of 3 terrorists was negotiated.

International Law and its role in aerial hijacking

Due to an increase in cases of hijacking in the early 1960s, the situation worsened to an extent where a country that is considered a superpower in the world ( the United States of America) recorded 160 incidents of hijacking that took place between May 1961 to January 1973. Therefore, it was evident that there was a dire need for international laws that regulated aerial hijacking. Moreover, in order to solve the aforementioned problem and punish the hijackers, several treaties and conventions have been formulated and adopted by countries all around the globe, they are:

The Tokyo Convention, 1963

The Tokyo Convention, 1963 was signed in Tokyo at a diplomatic conference on September 14, 1963. However, it came into force on December 4, 1969

Article 1 of the Tokyo Convention, 1963 was the first Convention that penalized the act of ‘jeopardizing the safety of person or property’ under civil aviation, while the aircraft was engaged in international aviation. Moreover, the signatories agreed that if there was an unlawful takeover of an aircraft or a threat of it on their territory, then they would take all necessary measures to regain or keep control over an aircraft. The captain can also disembark a suspected person on the territory of any country, where the aircraft lands, and that country must agree to it, as stated in Articles 8 and 12 of the Convention.

Furthermore, it provides that the State of registry of an aircraft is competent to exercise jurisdiction over the unlawful acts committed on the onboard aircraft. Moreover, it also stated that in the case of anticipation or commission of such unlawful activities, it obligates all the countries that are party to this treaty to restore the control of the aircraft.

The Hague Convention, 1970

The Hague Convention, 1970 was adopted by the International Conference on Air Law at the Hague on 16 December 1970. Moreover, the Convention came into force on October 17, 1971.

The Tokyo Convention was the first global intention to suppress offenses committed onboard a civil aircraft. However, it failed to recognize the act of hijacking, sabotage, and terror attack, which left a massive loophole in the Convention. Therefore in order to cover these loopholes and due to the increase in the number of hijacking year after year, that is when Hague Convention, 1970 was formulated.

However, the international community, ICAO Legal Committee, submitted a draft to ICAO at Hague. This Convention aimed to suppress such terrorist attacks on civil aircraft, by punishing the act of ‘unlawful seizure’ of an aircraft. Moreover, it recognized hijacking as a separate offense with punishment as severe as capital punishment. The Hague convention obligates its members to either prosecute or extradite offenders guilty of hijacking.

The Montreal Convention, 1971

The Montreal Convention, 1971 was signed on September 23, 1971. Moreover, it came into force on January 26, 1973.

The Hague Convention was a great improvement from the Tokyo Convention. However, it failed to recognize the fact that these aerial attacks were well planned and people who controlled these attacks from the outside are also equally responsible, along with the ones committing the act of unlawful seizure of the aircraft. Furthermore, it still provided for no relief or reward of damages to the innocent passengers and crew members hijacked aboard.

Therefore the Montreal Convention, 1971 further extended the scope. One of the key advancements in this legislation included that it penalized the ones that were not on board. The Montreal Convention greatly resembles the Hague Convention but also extends to acts of unlawful interference against international civil aviation.

The Montreal protocol, 1988

All the aforementioned conventions aimed to cover all the drawbacks that were present in the onboard terrorist experience of civil aviation. However, it will not be out of place to state here that all the 3 conventions saw the terrorist activities with a lens of unlawful activities, and seizure of an aircraft and failed to recognize the fact that, any terrorist activity within the vicinity of the aircraft such as the airport tends to cause an equal amount of chaos.

Moreover, this issue was addressed in the Protocol and the scope of the Conventions was expanded from in-flight to in-service. Wherein the in-service under the ambit of this protocol was defined from the time pre-flight preparation starts by ground personnel or crew, until twenty-four hours after landing. Therefore it is crystal clear that this Protocol was aimed to not only protect the aviation safety onboard but also the airport facilities.

Scope for loopholes

International law relating to air safety is to be found in the Convention relating to the regulation of Aerial Navigation, 1919 which recognizes that every nation has exclusive sovereignty over the air space above its territory. Therefore, with aerial hijacking taking place more often, this rule became even more relevant. This is because the international customary law is followed by a practice that no other states should give assistance to any terrorist attacks.

Even though countries are so intolerant when it comes to terrorism. However, extradition of the criminals that are guilty of the crimes, is the single biggest insufficiency in not just the aerial hijacking laws but in all international laws in general. Moreover, customary international law provides no rule which imposes a duty to extradite, and since international law maintains no central enforcement agency or universal sovereignty to affect compliance with established international norms it relies upon voluntary compliance of participating States to advance international order.

Therefore, these criminals in some or the other way find their way around the law and become the political refugee of the country they were found in or takes an uncomfortably long time to extradite, and the essence of delivering justice is lost after that long. This needs to be amended in international law, guilty personnel should be extradited to the country that they have committed the crime against so that they are punished and the people on the aircraft that suffered from trauma from that incident or even lost lives get justice.

Indian laws for aerial hijacking

For the longest period of time, India followed the Anti-hijacking Act, 1982. It was formulated in accordance with the Hague convention, as India was one of the countries part of the convention. However, these should have changed a long time back because these laws were not aligned with the international conventions. Somehow the need to amend the laws was not felt because the attacks did not take place as often as they took in the 1970s and the security had improved after the hijacking incident that took place in Kandahar.

However, the government in 2016 felt the need to repeal the laws in place and formulate new laws as they were old and archaic. Subsequently the Anti hijacking Act, 2016 was passed, it brought about many changes that were needed and due for a long time. For example, in the earlier version, it only punished the offenders that were present on the aircraft but with all the technological advancement taking place, there had to be an inclusion of the same to prevent such unlawful activities in the future. Moreover, the new Act covered the term hijacking in the broadest sense.

Furthermore, the new Act also widened the scope of punishment because under the earlier enactment everybody found the way around and escaped the law with ease but now by increasing the scope of in-service and severely punishing the hoaxes (with respect to aerial hijacking) that results in unnecessary chaos, the new Anti-Hijacking Act would still be applicable if the offense of hijacking takes places outside India in an aircraft that is registered in India or is leased to Indians, or when the offender is in India or if the offender is Stateless but is a resident of India, or when the offense is committed against Indians. The Anti-hijacking Act, 2016 looks more effective and aligned with the international treaties of the world.

Conclusion

Aerial hijacking has always been a topic of concern as it brings the whole country to its knees in case of any act of hijacking, and in many cases, many innocent people die because the hostages in such situations are at the mercy of these hijackers. If the government concerned is not able to protect their citizens then it not only brings a bad name to the particular airline but the whole country.

However, now with better security and stricter laws, the incidents of hijacking have been reduced significantly. However, the authorities shouldn’t become complacent of the same because these attacks have just reduced in number, they still haven’t stopped altogether. Therefore the amendments should be made time and again so that the world does not witness another heart-wrenching hijack, where innocent people lose their lives.

References

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Important laws and concepts to be known when dealing in the securities market

By

Shoronya Banerjee

-

November 12, 2021

0

This article has been written by Raunak Sood, pursuing the Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).

Table of Contents

Introduction

When dealing in the securities market it is important to know and understand some basic concepts:

Whether the security the investor is going to purchase, is that security a marketable security?
Who is in control of the company that has floated its shares in the market?
What is the corporate governance structure and whether any differential voting rights are present with the existing shareholders of the company?
Is the company professionally managed? If yes, then what are the benefits for the investor?
Who is a wilful defaulter?

With these questions being answered any investor can go and invest in the securities market. A basic answer to the above-mentioned questions will help any novice investor to understand and make a wise decision before buying any security in a careless manner.

6. Marketable security

Whether security is marketable or not has been discussed in various judgments which are summarised as follows:

Norman J. Hamilton v. Umedbhai S. Patel, LNIND

The plaintiffs entered into a contract of purchase of redeemable preference shares with the defendants for the procurement of ordinary shares and redeemable cumulative preference shares of A. Macrae Company (private company), wherein the total sum of money paid for the contract was Rs. 2,77,500 and Rs. 10000 was paid by the defendants as the down payment and the rest of Rs. 26,750 was to be paid in ten annual installments. However, there was a default by the defendants during the fourth and fifth payment, hence the present matter reached the court.

Whether the contract for the purchase of shares is void ? (b)Whether the Securities Contract ( Regulation) Act, 1956 applies to the present matter and the contract?

The plaintiffs argued that the contract was for the sale of shares and transfer of the controlling power within the company, the defendants contended that the contract for the purchase of redeemable preference shares was illegal as per the law laid down in the Securities Contract Regulation Act, 1956, henceforth the court had to look into the aspect of the said Act to apply to the contract between the parties.

Under Section 2(1) of the Securities Contracts (Regulation) Act, 1956 (hereinafter referred to as “SA”) only spot delivery contracts ( the contract provides for the actual delivery of security on the same day the parties entered into the contract or the next day) are allowed, but in the present case, the contract provides for the contract money to be paid in installments, hence it is not a spot delivery contract. According to the court, the shares of a private company are not marketable securities under Section 2(h) of SA because marketable securities are those securities that are of high liquidity and applying the noscitur a sociis rule of interpretation and reading the statute of SA as a whole the court noted that securities of a private company are not “securities” mentioned in Section 2(h) of SA as in the present case the redeemable preference shares are not governed by the SA as the legislative intent behind the SA was to prohibit the speculation of the share price on stock exchanges and no proposal was seen from the side of Gorwalla Committee to regulate the private companies securities whereas the securities which are traded on the Stock Exchange enjoy high liquidity whereas shares of the private company enjoy less liquidity as they cannot be freely bought and sold on the stock exchange, hence SA can only apply to shares of a public company.

In lieu of the aforesaid discussion, it is hereby concluded that the contract between the plaintiff and defendant is binding and legal whereas SA will not apply to the present matter.

Mysore Fruit Products Ltd. and Others v. Custodian and Others, LNIND

The petitioner company received Rs. Four crore ten thousand, from another company for buying the FSSL shares worth Rs. 500 each, but it was contracted between the parties that an outstanding amount of Rs ninety-nine lakhs ninety thousand would be paid by the respondent along with the return of one lakh fifty thousand shares to the petitioner. The whole transaction was to come into effect on a future date of 30^th Sept 1993, but the respondent did not pay the contractual amount of Rs. 99,90,000.

Is the transaction illegal? (b)Whether the transaction falls under the scope of Securities Contract (Regulation) Act, 1956 for an unlisted public company (hereinafter referred to as “SRA”)?

The petitioners argued that the shares of the company were transferable shares and the allegation of the respondent regarding the diversion of money cannot be made a separate ground whereas no fraud was committed on the petitioner’s behalf, it was also contended by the petitioner that forward sale of shares is not prohibited under SRA for a company which is unlisted in the stock exchange. The respondents argued that the contract was about a forward sale which is not allowed under the provisions of the SRA because the shares bought by the petitioner were not listed on the stock exchange.

Under Section 2(h) of the SRA, there is a word of “other marketable securities”, thus it means that the securities should be “marketable” i.e., marketability means buying and selling of shares, hence those securities which can be bought and sold are covered under the provisions of SRA. The sale of shares of a public unlisted company means that even though the public company is not on the stock exchange but still its shares can be converted into some degree of liquidity, hence shares of a public unlisted company are “marketable” in nature. It is also pertinent to note that the SRA promotes spot-on delivery of shares and not the forward sale.

Therefore in lieu of the aforesaid discussion, it is hereby concluded that shares of public unlisted companies come under the scope of SRA and the transaction between the parties is completely illegal.

Bhagwati Developers Private Limited v. Peerless General Finance And Investment Company And Another, LNIND

Bhagwati Developers (hereinafter referred to as “BD”), whereas BD lent some amount of money to the respondent for buying equity shares later on a bonus issue was generated on the purchased shares, but respondent 2. did not give the shares to Bhagwati, a suit was filed in the civil court at Allahabad which was later on compromised and the decree was drawn by the court. Respondent 1( peerless), who was the company that issued the shares, did not allow access to those shares to BD because the shares were registered in the name of respondent 2. BD was aggrieved and hence the present matter.

Whether the contract between BD and respondent 2 is valid? And what is the nature and definition of “security”. (b) Whether the SCR will apply to shares of unlisted public companies?

BD argued in the court that the shares of peerless are not marketable hence Section 2(h)(i) of SCR (“Security Contract (Regulation) Act, 1956) is not applicable and respondents argued that the share to be marketable does not mean that the said share has to be sold off in the market.

According to the court, the only requirement to be a share under SCR is the free transferability of shares, hence shares of public companies not listed on the stock exchange are securities for the purpose of SCR and SCR does not apply to the shares of private companies. In lieu of the aforesaid discussion, it concluded that the contract between the parties is not a valid contract and SCR applies to the shares of unlisted public companies.

Control of a company

For the purpose of this part let’s suppose that there is an equity shareholder with the hereunder mentioned number of shares and the voting right exercised by him is proportional to the number of shares owned by him. The control (defined in Section 2(27) of the Companies Act, 2013) of the said equity shareholder over the company is as follows:

The shareholder has 10% equity shareholding – Such a shareholder is called a minority shareholder because they have very little control over the company whereas they can take part in the said appointment of director to the board from the side of minority shareholders wherein even listed companies have to comply with this provision (Section 151, Companies Act, 2013 hereinafter referred to as “CA, 2013”).
The shareholder has 20% equity shareholding – Such a shareholder acts like an associate company (refer to Section 2(6) of CA, 2013) wherein such company has significant influence on the decision making and they get a chance to appoint a director along with other minority shareholders.
The shareholder has more than 25% equity shareholding – This kind of shareholder exercises a negative control over the company because he has to agree with other shareholders for the passing of a special resolution and is called a significant beneficial owner of the company. The term of “Significant beneficial owner” (see Section 90 of CA, 2013) is having separate rules in Companies (Significant Beneficial Owners) Rules, 2018 they have the right to receive entitlement from their own shares.
The shareholder has more than 50% of equity shareholding – Such a shareholder is highly influential and can take almost all decisions of the company, he is called as having the controlling interest in a company. He can appoint majority of board of directors and can veto the decisions of the board of directors as it can be seeming under SEBI ( Substantial Acquisition of Shares and Takeovers) Regulations, 2011 that majority shareholder can even control shareholder agreements and voting agreements by passing of an ordinary resolution (Section 114(1) of CA, 2013).
The shareholder has more than 75% of equity shareholding – Such a shareholder can unanimously amend the Memorandum of Association and Articles of Association of the Company by a special resolution ( See S. 114 of the CA, 2013) without even consulting the other shareholders along with that he will be able to influence lot of decisions in the company.
The shareholder has 90% of equity shareholding – Such a shareholder has the power to pass ordinary resolution and special resolution but under Section 236 of the Companies Act such a shareholder has to give a chance to the minority shareholders to leave the company and if this is read with section 27 of the Companies (Compromise, Arrangement and Amalgamation) Rules, 2016 then the minority shareholders can sell of their shares to this 90% holder at a reasonable price.
The shareholder has 100% of the equity shareholding – Such a person has complete ownership of the company in other words it is a one-person company as defined in Section 2(62) of the Companies Act 2013.

Corporate governance and differential voting rights

Differential Voting Rights ( hereinafter referred to as “DVR”) wherein a person in the company has less share of the company, he has more voting rights and control, herein control is not equivalent to holding in share. Instruments with DVR assist companies to raise capital from the public without the weakening of control in the company so that any hostile party may not take over because the shares issued will have a fractional number of voting rights.

At present (a) equity listed company, (b) unlisted company with an intention of listing, (c) unlisted company without an intention of listing( Section 43 of Companies Act 2013 r/w Rule 4 of Companies (share capital and debenture) Rules, 2014), and (d) private companies not coming under Section 43 of Companies Act 2013.

Perspective of corporate governance

Generally, in a company share is assigned one vote, it is one of the practices followed even on an international level because the main reason is that the Board of directors tends to work in the best interests of all the present shareholders. A company where the one share-one vote ( hereinafter referred to as “the policy”), the policy is not followed herein an event might happen where the board of directors is focused on the interests of those shareholders who despite having fewer shares in the company are having higher quantum of voting rights, this is a scenario where it becomes unfair towards the majority shareholders who have shares worth more compared to that of the minority shareholders, therefore there can be a divide between the cash flow rights ( the majority shareholders with less voting rights ) and voting rights ( minority shareholders with higher voting rights).

Another reason from the corporate governance point of view is that the policy makes a fair playing field whenever there are events of taking over of the management of a company and it is the most effective solution from a social point of view and improves distribution of control to minority shareholders who can feel empowered to raise their concerns in the company.

Why are differential voting rights desirable ?

Since India is growing and the general trend is that the equity method of raising capital is better compared to raising capital by way of debt, hence DVR is the preferred method of raising capital because it does not dilute the control of an existing shareholder who might be the promoter of the company. This is beneficial to investors as the trust in the founders of the company has made the said company successful and there is no near chance of a takeover of the company and generally speaking, DVR shares have a higher amount of dividend associated with them compared to an ordinary equity share.

Balancing rationale between corporate governance and differential voting rights

There is no doubt that DVR is theoretically against the principle of healthy corporate governance because it violates the one share-one vote rule but in a practical sense, DVR is necessary for the growing economy of India because founders and promoters of a company fear the loss of control may not ask assistance from the public for the purpose of raising capital whereas such companies might excessively resort to debt instruments in which they will have to pay the principal amount plus the interest on that principal amount, hence this is not a very good option for raising capital for financing the operations of a company. Therefore, for the growth and securing the future of the company DVR is a necessary evil that needs to stay even if principles of corporate governance are being violated.

Professionally managed companies and investors

A company running without a promoter

A professionally managed company is a company wherein no promoter is capable of being identified because no such person exerts “control” (as defined under Section 2(27) of the Companies Act, 2013 read with Regulation 2(1)(e) of the Securities Exchange Board of India (Substantial Acquisition of Shares and takeover) Regulations, 2011 by virtue of their shareholding or participation in the management or SHA (special controlling rights) or rights granted under an executed agreement.

In a professionally managed company, firstly, the Board of Directors (“BOD”) enjoys independent decision-making powers, secondly, the daily management functions are carried out by professionals, lastly, no shareholder/director or otherwise shall have the authority to make appointments to the important managerial designations in the company. Therefore, in such a company the AOA, BOD, and shareholders are the ones to define the guiding factors of such a company (professionally run company).

Minimum promoters’ contribution and how this requirement is fulfilled

The requirement of 20% holding of the post-issue capital has been waived off vide Proviso of Regulation 14 sub-clause 1, wherein in the case of a professionally managed company (no identifiable promoter) there is no need for minimum promoter contribution. As per Regulation 31A sub-clause 3(c)(i) read with Regulation 38 of the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 points out that there has to be a minimum public shareholding as described in Rule 19(2) and Rule 19A of the Securities Contract (Regulation) Rules, 1957 described hereunder :

Equity shares or debenture convertible into equity shares issued by the company.	Minimum offer and allotment to the public.	Quantum of post issue capital at an offer price
At least 25 percent	Less than equal to Rs. 1600 Cr.
Percentage of each equity or convertible debenture equal to Rs. 400 Cr.	More than Rs. 1600 Cr. less than Rs. 4000 Cr.
At least 10%	Above Rs. 4000 Cr.

Therefore, in the case of a professionally managed company, there has to be minimum public shareholding which is to fulfil the requirement in post-issue capital, herein there exists no promoter holding more than 10% of the voting rights in the listed company.

Regulatory rationale and investor protection with regards to a professionally managed company

It is a known principle of corporate governance that ownership and management should be separate, and shareholders should not interfere in the management of a company. This is the main rationale surrounding a professionally managed company wherein there is no promoter having control over the affairs of the company thereon the ownership and management is acting on an independent basis, hence as far as investor protection is concerned wherefore SEBI under Regulation 31A is protecting the investors herein it can be seen in sub-clause (3) that when a promoter is being reclassified as “public” then he or she shall disclose the rationale behind being reclassified as “public”, under sub-clause 3(b) the mandatory conditions to be followed for being reclassified and sub-clause (8) and sub-clause (9) relating to disclosures of material events and need of a BOD resolution approved under S.31 of the Insolvency Code, thereby show that SEBI is not compromising on the aspects of investor protection as SEBI is acting as a check against abuse of power by any promoter to cheat or defraud an innocent investor.

Wilful defaulters

The Reserve Bank of India (hereinafter referred to as “RBOI”) is responsible for the regulation of this issue of wilful default ( hereinafter referred to as “WD”) by issuing a master circular (“MC”) the RBOI makes the law on this topic. In chapter 12 under the heading of “Disclosures pertaining to WD” under the SEBI ( Listing of Obligations and Disclosure Requirements), 2015, lists the disclosures to be made for enlisting the said redeemable preference shares read with Regulation 102 of the SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2018 that an issuer company gets disqualified from making a further public offer on the ground that the promoters or directors are declared WD by the RBOI.

What is meant by a wilful defaulter ?

The RBOI issued an MC dated 1.07.2015 (“MCD”) wherein a combined reading of clause 2.1.3 read with clause 2.3 of the MCD states that a wilful defaulter (“Defaulter”) is a person who has not paid back to the bank the loan amount (“Loan Money”) taken by him even though he has the money to discharge the loan money, or has not used the loan money for the said objective for which he was given the money by the bank, or has neither used the loan money for the specific objective for which the loan was obtained nor the loan money is currently present with the WD in the arrangement of assets.

Note that INR 25 lakh is the limit of loan money herein the said promoter/director shall be held to be a WD as per the bar set by the Central Vigilance Commission (“CVC”).

How to identify the defaulter and which procedure is followed ?

Clause 3 read with clause 2.5 read with clause 4 ( including all the sub-clauses ) of the MCD we get that an administrative committee of higher functionaries (“Committee”) takes a sound reasoned judgment with conclusive evidence wherein the defaulter is given 15 days’ time period of challenge the Committee decision.

Process : Evidence of WD has to be examined by this Committee herein a show cause notice is issued to the defaulter and a reasonable opportunity for tendering an explanation to the allegations of WD via the mode of written submission in a personal hearing and after this, an Order recording WD with proper reasoning is passed by the Committee.

Review: Any order passed by this Committee is reviewed by another committee headed by the Chairman and other directors of the lender bank (this was the bank affected by WD) called as Review Committee and the order becomes final after it has been confirmed by the Review Committee but it is pertinent to note that the Review Committee has given the opportunity to be heard to the defaulter.

Supreme Court judgments

SBI (State Bank of India) v. Jah Developers Pvt Ltd, in the Supreme Court it was held that the Committee constituted is not holding judicial power hence lawyer cannot appear before the said Committee wherein the court held that since cruel punishment is meted to a Defaulter under MCD hence MDC should be interpreted in a reasonable manner.

Mahindra Bank v. Hindustan national Glass & Industries, – It was held that WD under clause 2.1 also includes borrower units that have not paid back the loan money as per the said contractual payment obligation of guarantee or derivatives.

Conclusion

When dealing in the securities market it is important that the security should be marketable, a professionally managed company should be preferred while investing, and do a background check to make sure that there is no person on the Board of Directors who is a wilful defaulter.

References

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United Kingdom’s role as a peacemaker : role played by the government in addressing military conflicts

By

Diva Rai

-

November 12, 2021

0

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This article is written by Bhavyika Jain pursuing BBA.LLB from Symbiosis Law School, NOIDA. It talks about the United Kingdom’s status as a peacemaker and its role in addressing urgent world problems and military conflicts.

Table of Contents

Introduction

The United Kingdom is a sovereign country in northwestern Europe, off the European mainland’s northwestern coast. Over the course of several hundred years, the United Kingdom was founded through a succession of annexations, unions, and separations of constituent countries. The United Kingdom of Great Britain and Ireland was formed in 1707 by the Treaty of Union between the Kingdoms of England (which included Wales after its annexation in 1542) and Scotland (which included Wales after its annexation in 1542) to form the Kingdom of Great Britain, followed by their union in 1801 with the Kingdom of Ireland.

The three mandates for peacekeeping are the host state’s agreement, impartiality, and non-use of force. They are evolving in tandem with these new problems. Today’s peacekeeping missions are “multidimensional” involving military, police, and civilian forces. Many modern conflicts are low-intensity and ad hoc, with no official armies and multiple fighting fictions.

UK’s involvement in UN peacekeeping

The United Kingdom is a key member of the United Nations Security Council and is in charge of writing resolutions on peacekeeping, civilian protection, the Women, Peace and Security Agenda, and specific nation instances such as Somalia, Darfur, and Cyprus. The engagement in UN peacekeeping takes three forms i.e.

Participation in the Security Council, which establishes peacekeeping missions;
Providing finance for operations;
Supplying troops.

Aside from its participation in high-level decision making, the United Kingdom is a major financial contributor to the peacekeeping missions. The United Kingdom, as the fifth-largest contributor, contributes 6.68% of the UN’s overall budget for peacekeeping.

However, the United Kingdom undoubtedly falls short in terms of soldier contributions. Only 286 troops, 5 police officers, no military advisors, and very little military equipment were sent by the UK. The United Kingdom is ranked 50th among peacekeeping providers; a small country like Fiji contributes more than twice as many personnel as the UK, while China, a fellow permanent member of the Security Council, contributes 2183 personnel.

Peacebuilding efforts by the United Kingdom

Since its inception in 1997, the Conflict and Humanitarian Affairs Department of the UK has led the Department for International Development’s (DFID) conflict-related strategy and programming. Conflict analysis is now part of DFID’s geographic departments and country programmes. The UK government recognises that each war is unique, and thus the Department for International Development (DFID) established a “Conflict Assessment Methodology” that has already been applied to 10 conflict scenarios. In 2002, the Conflict Prevention Unit was extended to improve conflict prevention resource management and to help the Foreign and Commonwealth Offices mainstream conflict prevention.

Over the last three years, DFID’s Africa Conflict Unit has increased its staff, largely to assist initiatives under the Africa Conflict Prevention Pool (ACPP). The actions of security and reconciliation are inextricably linked to peacebuilding. Investments in post-conflict socioeconomic and reconstruction projects, on the other hand, almost never indicate a desire to promote peace. As a result, they are unlikely to be assessed for their ability to promote peace. The UK’s emphasis on inter-actor coordination and the UN’s important position imply that the UK is attempting to ensure horizontal consistency among actors.

An overview of the current military conflicts in the UK

The British armed forces, commonly known as Her Majesty’s Armed Forces, are the armed forces in charge of defending the United Kingdom, its overseas territories, and Crown dependencies. They also advocate the United Kingdom’s broader interest, contribute to international peacekeeping efforts, and provide humanitarian assistance. The British Queen, now Queen Elizabeth II, is the Head of the Armed Military, to whom all personnel of the forces swear allegiance. A long-standing constitutional Convention, on the other hand, has vested de facto executive authority in the Prime Minister and the Secretary of State for defense through the use of royal prerogative.

The current ongoing military conflict taking place is the Mali conflict where the UK, being an essential part of the UN peacekeeping mission has decided to help Mali. The Sahel crisis will approach its eleventh year in 2021. In the middle of a protracted conflict, each country has suffered different patterns of violence and transformations, notwithstanding the crisis’ international dimension. The trends of violence in Niger, Burkina Faso, and Mali are examined.

It closes with a look at the Sahel as a whole. In the face of military pressure in the tri-state border region, both the Islamic State in the Greater Sahara (ISGS) and the Al Qaeda-affiliated Jama’at Nusrat Al Islam Wal Muslimin (JNIM) have shifted their efforts to geographic areas beyond the immediate reach of external forces, (or Liptako-Gourma). Jihadist militant groups have been able to broaden their scope of activity, reassert their authority, remobilize, and earn money to rebuild as a result of their renewed engagement in local conflicts. This is evident in the Tillaberi and Tahoua regions of Niger, as well as the eastern parts of Burkina Faso and central Mali.

Niger is frequently thought to be less affected by armed groups than Mali and Burkina Faso. However, the country faces a number of difficulties. Boko Haram insurgency in the Lake Chad Basin, ISGS-led Sahelian insurgency in northern Tillaberi, and JNIM operations in southwestern Tillaberi are among them. ISGS is responsible for 66 percent of all deaths from organised political violence in Niger in 2021, and around 79 percent of all deaths from violence directed at the civilians. Communities are becoming more resistant to the predatory collection of “zakat,” or alms, which is a religious obligation in Islam but is utilised by ISGS as a pretext for extortion and cattle theft.

Violence broke out in a number of other places, including the Djibo region, where the situation had remained reasonably calm since the last big attack on the military camp built in Gaskindé in September 2020. Tensions between ethnic Fulani and Mossi villages in Kobaoua and Namssiguia erupted between late February and early March 2021, when JNIM and volunteer fighters carried out a series of tit-for-tat attacks.

In the village of Kodyel, in the Foutouri area, JNIM militants slaughtered nearly thirty residents, including VDP, in May 2021. The attack was most likely in retaliation for VDP mobilisation and abuses against the Fulani people. A similar massacre in the neighbouring town of Hantoukoura in December 2019, which murdered 14 Christian worshippers, was reportedly prompted by the villagers’ sympathy for the Koglweogo.

These attacks demonstrate once again how abuse and cruelty by all armed parties involved in the conflict fuels cycles of violence with ever-deadlier retaliation. On the 5th of June 2021, a massacre in the town of Solhan killed roughly 160 people, making it the bloodiest attack in Burkina Faso since the insurgency began. The attack has not been claimed by any group; instead, JNIM has denied responsibility and condemned the attack.

Due to the Malian armed forces’ current operational weakness, the Malian state is unable to handle the multiple flashpoints in central Mali and the militant advance in the southern provinces. Following a second military-led coup in May 2021, nine months after the first in August 2020, disrupted politics in Bamako have strained Mali-France relations and led to disharmony in the strategic military cooperation. As a result, French President Emmanuel Macron has threatened to pull the country’s troops out of Syria. France also halted joint military operations and collaboration with Mali, for the time being, depriving Mali of critical air cover and intelligence assets.

As a part of the UN’s peacekeeping mission in Mali, 300 UK troops have arrived, mostly from the Light Dragoons and the Royal Anglian Regiment, and backed by specialised crafts from throughout the armed forces. The UK Taskforce will provide a highly specialised reconnaissance capability, conducting patrols to gather intelligence and engage with the local population in order to assist the UN in responding to the challenges posed by violent extremism and poor governance. Over 14,000 peacekeepers from 56 nations make up the UN Mission in Mali, which seeks to assist peace efforts, facilitate security sector reform, protect civilians, and promote human rights.

The United Kingdom and Afghanistan

The other military conflict in which the UK was a part is with Afghanistan. The United Kingdom and Afghanistan have a bilateral relationship. Following the terrorist attacks on the United States on September 11, 2001, Britain launched its latest war in Afghanistan. It lasted 13 years, ending on October 26, 2014, when the final combat soldiers left the country. The conflict in Afghanistan lasted three prime ministers’ terms and claimed the lives of 453 British troops and thousands of Afghans. What was achieved after 13 years of conflict, including eight years of intense battle in Helmand, is still up for debate.

The British campaign’s legacy is more difficult to assess. The British strategy was never quite clear. The efforts of the Provincial Reconstruction Teams to develop Helmand’s economic infrastructure were intermingled with operations to clear the towns of insurgents.

Schools, hospitals, roads, reservoirs, and power generating were built to encourage Afghans to invest financially. Agricultural projects were also prioritised in order to entice farmers to grow non-opium crops. Despite large-scale operations aimed at driving rebels out of Helmand, combat remained intense. In the United Kingdom, public opinion was growing hostile to the war. The British began investing extensively in the training and mentoring of the Afghan National Army and Afghan National Police in order for them to assume greater responsibility for the security situation in Helmand and throughout the country.

International legal perspective with respect to armed conflicts

When there is fighting between states or long-term armed violence between governmental authority and organised armed groups or only organised armed organisations, an armed conflict occurs. When one state utilises military force against another state or states, it is called an international armed conflict. Even if there is no armed resistance to the occupation, the phrase applies to all circumstances of total or partial military occupation. It no longer matters whether the parties involved regard themselves as at war with one another or how they describe the fight. When active hostilities or territorial occupation cease, an international armed war is said to be over.

Non-international armed conflicts, often known as internal armed conflicts, occur within a country’s borders and do not involve foreign military forces. For instance, two or more armed factions battling within a state, but without the presence of official soldiers. Specific legal provisions apply to this form of conflict. When the internal opposition is better organised in terms of command and control of territory and thus capable of carrying out continuous and concerted military operations and enforcing the law on its own, slightly different laws apply, but only if government forces are involved.

International organisations such as the United Nations, the Council of Europe, the OSCE, and the International Committee of the Red Cross play a variety of important roles in armed conflicts, including improving communication between opposing forces, facilitating humanitarian cooperation, building civilian-military dialogue, providing essential services to civilian populations, and encouraging all actors to uphold and implement the Geneva Conventions.

International humanitarian law (IHL), sometimes known as the rules of war, governs armed conflicts primarily. IHL is a system of norms – either codified in treaties or accepted by custom – that impose restrictions on what parties to a conflict can do. IHL’s main goals are to reduce human suffering and protect civilians as well as former combatants who are no longer directly involved in conflicts, such as prisoners of war.

Serious crimes, such as war crimes, genocide, and crimes against humanity, fall within the umbrella of International Criminal Law (ICL). All governments have an obligation to prosecute persons who are reasonably suspected of criminal culpability for crimes under international law, including through universal jurisdiction, yet many states are unwilling or unable to do so. The International Criminal Court (ICC) was founded in 2002 to put an end to impunity for international crimes.

The International Criminal Court (ICC) is a court of last resort that is utilised when national judicial systems are incapable or unwilling to prosecute culprits. States Parties or the UN Security Council, which can also refer proceedings against non-State Parties, can refer cases to the ICC. On the basis of external evidence, the ICC Prosecutor may decide to begin an inquiry against a State Party. To hold perpetrators of crimes under international law accountable, some states have formed hybrid courts, which are local tribunals with international aspects.

UK government and its role as a peacemaker

Since 2010, the country has been governed by a Conservative-led government, with consecutive prime ministers serving as the Conservative Party’s leader. The Cabinet, which is made up of the Prime Minister and their most senior ministers, is the top decision-making body. Although the king has executive authority under the uncodified British Constitution, this authority is only exerted after receiving advice from the Privy Council. On the Privy Council, the monarch’s members and advisers include the Prime Minister, the House of Lords, the Leader of the Opposition, and the police and military high command.

Though certain Cabinet roles are sinecures to a greater or lesser extent, the cabinet exercises authority directly as leaders of government ministries in most circumstances. Because many of the government’s offices are located in Westminster or Whitehall, the government is sometimes referred to as “westminster” or “whitehall.” Members of the Scottish Government, Welsh Government, and Northern Ireland Executive, in particular, utilise these metonyms to distinguish their governments from HMG.

The United Kingdom government will contribute to UN efforts to avoid and manage conflicts, as well as to alleviate humanitarian suffering. Funding for the United Nations peacebuilding programmes will help avert conflicts and promote peace around the world. This money will go towards a variety of projects in over 40 nations, ranging from pressing for disarmament to encouraging women and young people to participate in political debate and peacemaking. Since 2010, a global uptick in warfare has resulted in a significant increase in human deaths. The funding by the United Kingdom will assist the United Nations in preventing and de-escalating conflict, which is critical to preserving lives.

The United Kingdom has identified three important priorities in this regard:

To begin, the UN and the World Bank must strengthen their peace relationship. Their combined vision, knowledge, and global presence are critical to ensuring that multilateral development initiatives address conflict drivers.
Supporting greater preventive diplomacy inside the UN, because we all know that effective conflict prevention and peacebuilding require political agreements.
Early, better, and more effective preparation is required to ensure smoother transfers to and from peacekeeping missions in the country to other UN bodies.

The existing loopholes and possible solutions

These three pillars are reinforced by the United Kingdom’s commitment to a larger, values-driven protection strategy. In this context, the UN’s efforts to combat sexual exploitation and abuse, as well as to prevent sexual violence in conflict, are critical. Of course, maintaining peace is an important aspect of the wider UN reform agenda, which the UK also supports.

As we look to the future, we need to be more inventive in terms of expanding the donor base for peacebuilding and delivering more comprehensive solutions through the UN’s collaborations with a diverse variety of organisations.

The United Kingdom stands ready as a long-term political and financial contributor to peacebuilding. It stands ready to support the General Assembly of the United Nations (UNGA) resolution’s process so that, together, we may work successfully to maintain peace and establish a world free of the scourge of war for future generations.

Conclusion

The United Kingdom’s peacekeeping missions assist countries around the world in navigating the difficult transition from hostility to peace. It aids in the development of mutual understanding between neighbouring states and guides people through the hostile conditions they face. It is a fantastic project that will benefit people all across the world.

References

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